
Class jJ/'j^^ 
Book_i__/i-^ 



COPYRIGHT DEPOSrr. 









LIBERTY DOCUMENTS 



LIBERTY DOCUMENTS 

WITH CONTEMPORARY EXPOSITION 

AND CRITICAL COMMENTS DRAWN 

FROM VARIOUS WRITERS 



^cUcteli anil PrcparetJ 

BY 

MABEL HILL 

State Normal School, Lowell, Massachusetts 

3Et!tt£t(, iait^ an Cntrotittction 

BY 

ALBERT BUSHNELL HART, Ph.D. 

Pkofessob of History in Harvard University 



LONGMANS, GREEN, AND CO. 

91 AND 93 FIFTH AVENUE, NEW YORK 

LONDON AND BOMBAY 

1901 



\ — 



THE LIBRARY OF 

CONGRESS, 
Two Copies Received 

MAY. 16 1901 

Copyright entrv 

CLASS A/XXo. No. 

COPY B. 



^V 



b"^ 



Copyright, 1901, by 
LONGMANS, GKEEN, AND CO, 



All rights reserved. 



UNIVERSITY PRESS • JOHN WILSON 
AND SON • CAMBRIDGE, U.S.A. 



TO THE BIEMORY OF 

MY DEAR FATHER 



PREFACE 



THE design of this book is to direct students to the 
evolution of constitutional government from the time 
of the declared policy of Henry I. towards his subjects to 
the present day. Its broader purpose is stated in detail in 
the Introduction, but a few brief words of explanation and 
acknowledgments of criticism and assistance give occasion 
for this Preface. 

The following chapters are the result of informal lectures 
given before my classes at the State Normal School in LoweU, 
Massachusetts, where we have for several years followed a 
course of study in Constitutional History (as given in the 
Outlines in the Appendix of this volume). In preparing stu- 
dents for the profession of public school teaching, I have 
deemed it wise to impress them with the underlying prin- 
ciples of citizenship and government, and to prove to them 
that the love of liberty is a noble inheritance of the past. 

In the special study of these written bulwarks of our 
freedom my aim has been to further the interest in original 
documents by comparing the details of the different articles, 
by discussing their bearing, by pointing out the development 
of constitutional history, and by noting the evolution of one 
document of liberty from the preceding one. The book 
makes no pretensions to exhaustive exposition, either of the 
documents discussed or of the critical material cited. It 
is meant as an aid to teacher and pupil whose time for his- 
torical research is limited, and it is but suggestive of the 
possibilities of further intensive study. 



Vlil PRE FA CE 

The outline on Constitutional History has served its pur- 
pose with my own classes, and in the ninth grade of our 
grammar department of the Practice School it is used as the 
basis for more detailed work. The fact that a large majority 
of the pupils who are to be benefited by public instruction 
finish their technical education with the last year in the 
grammar schools makes it imperative that a course in Ameri- 
can institutions and politics be presented which shall make 
intelligible to them the great race movement of which they 
are an integral part. 

At the same time that I offer this work to my fellows in 
the profession, I beg to acknowledge my gratitude to those 
friends who have assisted me with aid, advice, and criticism. 
Professor Albert Bushnell Hart, of Harvard University, 
Cambridge, and Judge Samuel P. Hadley, of Lowell, Mass., 
have guided me materially in my research for contempora- 
neous and latter-day comments. Mr. Henry A. Clapp, of the 
Supreme Court of Massachusetts, has given most generously 
of his time in making translations from certain Latin texts. 
The Hon, James 0. Lyford, naval officer of customs, Boston, 
Mass., has added to the varied suggestions and services of 
years by following the work of the outline with critical 
interest. I am indebted to the Librarians of the Harvard 
Library, Massachusetts State Library, and the Lowell City 
Library for their courteous liberality in the use of books. 

I take this opportunity to thank the various authors and 
publishers of copyright works from which material has been 
drawn, for permission to reprint the passages desired. The 
full titles of these works, with publishers' names, are given 
in Appendix D at the end of this volume. 

MABEL HILL. 
Lowell, Mass., November, 1900. 



INTRODUCTION 



THAT history is based on sources no longer needs asser- 
tion ; that the public state papers of the nation are 
among the most important sources for an understanding of the 
true spirit of past times has been a familiar truth since Dr. 
Stubbs put forth his immortal volume of Select Charters; no 
careful student and no thoughtful teacher any longer attempts 
to investigate or to present history without reading and think- 
ing about the constitutional sources. Dr. Stubbs, however, 
"was one of the men most aware that a document does not ex- 
plain itself ; it was his practice in his classes to expound and 
criticise his own charters. As the knowledge of, and publica- 
tion of, materials has widened, choice and a suggestive arrange- 
ment have become more and more important in making up 
useful collections ; and there is now a great mass of intelligent 
discussion by historians and publicists, which may be drawn 
upon by those who have been unable to sit at the feet of the 
masters. It is an encouragement to those most interested in 
history that there seems a demand for reprints of properly 
selected sources, and especially of constitutional documents 
illustrated by some reference to contemporary writers, set forth 
by adequate comment, and so arranged as to bring out the 
development of a nation's constitutional progress. 

Miss Hill, in her Liberty Documents, has undertaken to pro- 
vide for what is believed to be an interest in the foundations 
of English and American free government : at the same time 
she has endeavoured to avoid some of the obvious difficulties in 



X INTRODUCTION 

dealing with official and sometimes technical documents, by 
supplementing them with the light and life of discussion. The 
most approved method of historical teaching for schools of 
various grades, seems to be a text-book, backed up by reading 
both in the sources and in secondary books. Miss Hill has in 
this book brought about an ingenious and promising combina- 
tion of the two sorts of historical material ; and she has further 
divided the authors whom she uses, according as they wrote at 
or near the date of the documents, or as they came afterward, 
and could use the learning that had meantime accumulated. 
Out of the immense number of interesting and important docu- 
ments in English and American constitutional history, Miss 
Hill has chosen twenty-four documents, or groups of docu- 
ments, which include the great monuments of Anglo-Saxon 
liberty, and at the same time are sufficiently representative of 
the mass of omitted papers. Each of these documents she has 
prefaced with appropriate " Suggestions " which include some- 
statement of the historical conditions under which the docu- 
ment first saw the light, and in a few words shows the relation 
of each piece with other materials of the same kind. Then 
follows in each case the ' ' text " of the document. The earlier 
pieces, such as Magna Charta and the Confirmatio Chartarum, 
were written in Latin ; and therefore translations have been 
reprinted, or made expressly for this volume. The English 
documents of the seventeenth century were of course first 
written with the spelling, capitalization, and abbreviations 
usual at that time, and they have been transliterated by sub- 
stituting the ordinary form for the long s, and reducing the 
capitalization and spelling to modern usage. The documents 
of the eighteenth and nineteenth centuries are in general re- 
produced verbatim. In all cases an authentic text has been 
examined and compared, and omissions are indicated. As an 
example of the technical phraseology of English statutes, and 
in order to put at the convenience of the schools the full text, 



INTRODUCTION Xl 

of a document very hard to find in full, the Habeas Corpus 
Act of 1679 has been reprinted exactly as it stands, as an 
Appendix. 

After the text of each document follows the next feature of 
the book, the " Contemporary Exposition," especially helpful 
because it shows why our ancestors felt that the great docu- 
ments were essential to them and their posterity. The range 
of writers on English constitutional matters is ample ; and Miss 
Hill has been successful in finding plenty of appropriate and 
striking criticisms. An example, and one of the most quaint 
things in the book is Bishop Burnet's humorous account of the 
parliamentary trick by which the Habeas Corpus Act came to 
be passed. In the American part of the work good con- 
temporary comment abounds, and most of the famous American 
statesmen have been drawn upon, together with pamphleteers 
and public speakers. 

The fourth part of each chapter is the " Critical Comment," 
made up of approved criticisms from a considerable number 
of authors; here the best brief histories of England and the 
United States have been drawn upon, together with such special 
authorities on constitutional development as Stubbs, Hallam, 
Pollock and Maitland, Gneist, Boutmy, Blackstone, Borgeaud, 
Dicey, Curtis, Story, Bryce, Cooley, and Dunning. It is to 
be understood that these extracts are not chosen to defend a 
thesis or to favour any bias in Miss Hill's mind. She has taken 
pains to draw from people of different and even of opposing 
views; and to quote from authors who seem to sum up the 
results of the discussions and investigations of a succession of 
publicists. 

The purpose of this work, then, is in brief to place some of 
the most important memorials of history of the Anglo-Saxon 
race in a suitable and illuminating setting ; the document itself 
in a carefully verified text ; the opinions of contemporaries 
who are interested and competent ; later comment of scientific 



xii IN TROD UCTION 

writers, who have studied the documents through the perspective 
of human progress. 

For such a work Miss Hill has long felt the need ; in her own 
work as a teacher in secondary and normal schools, she has 
found it possible to interest young people in such studies of 
the institutional side of English and American history; the 
book therefore represents what may be, and actually is, taught 
in schools. None of these documents are beyond the grasp 
of a properly directed child of fourteen, and the hook is 
easy to handle because it contains the materials for its own 
discussion. 

A glance at the Table of Contents will show the principles 
which have been kept in mind in putting the book together. 
First of all will be noticed the long reach of the selections : the 
first document was written in 1101 ; the last report of a speech 
is still hardly dry from the press. The results of eight centuries 
of constitutional effort are stated or suggested in this volume. 

The book is an example also of the modern discovery that 
history is as continuous as geology; that so-called political 
revolutions are, like earthquakes and volcanic outbreaks, the 
sudden yielding to strains which have been growing more in- 
tense from year to year and age to age, till there is no longer 
a power of resistance. The book brings into clear and sharp 
relief the great truth that English and American constitutional 
history has run practically one course. The first ten chapters 
show the growth of English personal liberty down to the be- 
ginning of the eighteenth century; Chapters XI. to XIV. 
exemplify the change in the eighteenth century and the 
Revolution, from an English to an American form of statement 
of the principles of freedom. From Chapter XY. to the end, 
we find a record of the establishment and the growth of written 
constitutional guarantees in America. These three periods are 
really not separable from each other : for English institutions 
run into Colonial charters, and thence into State constitutions. 



INTRODUCTION xiii 

and the State constitutions were really a part of the general 
system of which the Federal constitution became a correspond- 
ing part. From the beginning to the end, there has been a 
kind of rolling-up of guarantees for the liberty of the in- 
dividual, so that Magna Charta, the Petition of Right, and 
the Bill of Rights, the Declaration of the Stamp Act Congress, 
the Declaration of Independence, Washington's Farewell Ad- 
dress, and the Proclamation of Emancipation are all a part 
of that conception of human rights which is the proudest out- 
come of American experience. 

The choice of documents must, of course, depend to some 
degree upon the personal interest and judgment of the person 
who may prepare such a work, although certain papers can no 
more be omitted from the set of Liberty Documeiits than the 
letter " e " can be left out of the alphabet. A part of the intel- 
lectual outfit of all properly trained American children is Henry 
First's Charter, Magna Charta, Confirmatio Chartarum, Habeas 
Corpus, Bill of Mights and Act of Settlement, Declaration of the 
Stamp Act Congress, Virginia Bill of Mights, Declaration of 
Independence, Articles of Confederation, Northivest Ordinance, 
Federal Constitution, Washington's Farewell Address, Dred 
Scott Decision, Proclamation of Emancipation, and the Mecon- 
struction Amendments. 

All these are to be found within the following pages, and also 
some selections less common but not less truly representative. 
In Chapter III. will be found two very racy letters written by 
Thomas Cromwell, which bring out a stalwart conception of 
how to deal with a parliament. In Chapter V. is inserted a 
very significant extract from a statute of 1429, which illus- 
trates the steady though slow development of the protections 
of liberty, and also shows the usual forms of royal statutes six 
centuries ago. In Chapter VII. have been printed two of the 
unsuccessful constitutions of the English Commonwealth ; they 
deserve attention, because through the Colonial Charters they 



xiv INTRODUCTION 

somewhat influenced the American written constitutions with 
which we are familiar. Cromwell's speech to Parliament is an 
interesting commentary upon the reasons for government and 
misgovernment during the English Eevolution. Chapter XI. is 
intended to show the nature of the Colonial governments and 
their constitutional basis ; for such a purpose no one English 
or Colonial official document could suffice, and a departure has 
been made from the general principle by including Dummer's 
Defence of the Charters, though it had no public sanction. This 
piece, taken in connection with the Virginia Bill of Rights 
(Chapter XIII.), builds the bridge between English and Ameri- 
can institutions. Chapter XIX. is inserted in order to show 
the principle of constitutional limitations on the powers of the 
legislature, although the immediate question happens to be 
that of chartering a bank. The reasoning of the Federal Court 
has been applied to the principle of limited legislative powers 
over personal relations. Chapter XX. has its justification in 
the familiar truth that the Monroe Doctrine arose to a large 
degree out of the feeling that the blessings of free government 
should be assured to our Latin-American neighbours. In the 
final chapter, XXIV., the relation of free and popular govern- 
ment to the American colonies is brought out through the 
President's messages and speeches on West Indian and Philip- 
pine affairs, and the arguments of others for and against the 
policy he has thus enounced. 

Many other documents might have been appropriately in- 
serted, but the twenty-four which appear below have a special 
right to appear because of their own importance and because 
of their relation with each other. The book moves from begin- 
ning to end ; each piece has a carefully considered place in the 
chain of human progress. 

The Appendices deserve some special mention ; one of them 
is the special text of the Habeas Corpus Act, alluded to above ; 
another is the necessary list of authors quoted, showing pre- 



INTRODUCTION XV 

cisely the editions used in each case, and thus making it easy 
to enlarge the extracts. For two others, Miss Hill has pre- 
pared an Outline of Essentials in English and American His- 
tory, an expansion of a smaller list long used in her own 
teaching. This outline is intended to show the relation of the 
constitutional documents to narrative history, and thus to put 
them on a proper background. 

How shall Liberty Documents be most effectively used? For 
the reader of history who likes to have at hand the text of the 
great documents which he finds mentioned, this edition is es- 
pecially serviceable, because, together with the text, he has the 
illustrative comment which makes clear the whole ground. 
Hence it may perhaps find a place in school, public, and private 
libraries. 

The most obvious use of such a book is to be the backbone 
of a course in English and American constitutional develop- 
ment, the Outlines in the Appendix serving for an analysis of 
the whole subject, while the documents are to be a subject of 
study and thought. Among the many collections of this kind 
there is perhaps no other which brings together the materials 
for a judgment of so many great constitutional principles ; for, 
besides the text, the references at the end of each piece carry 
the student to the best contemporaries and the best modern 
writers. In a certain sense the book is a little historical library, 
which, like all other libraries, is intended first to satisfy and 
then to make discontented, first to furnish the material neces- 
sary for the student and then to arouse him to search for more 
material. 

In any course in English history the book is available, — 
first, because of its careful reprint of the greatest English 
constitutional documents ; second, because of the side-notes, 
which call attention to the development of constitutional thought 
and practices. The documents are all such as will be useful 
to pupil and student ; and the great lesson is enforced that the 



XVI INTRODUCTION 

guarantees of English liberty extended also to the colonies, and 
through them were worked out in our own political system. 

In connection with a course in American Constitutional 
History the book is useful because it makes easy the pre- 
liminary study of the basis of American free institutions, in the 
practice and the concrete records of England ; and fourteen of 
the twenty-four chapters are devoted to distinctively American 
utterances. 

After all, the usefulness of a collection, like the usefulness 
of a text-book, depends, to a large degree, upon the teacher. 
One who is awakened to the importance of constitutional de- 
velopment, to the study of charters and statutes and constitu- 
tions, as expressing the aspirations of the people, will know 
how to show young people that that side of history is interest- 
ing. Perhaps, also, in these days of storm and stress, of the 
creation of new political powers and influences, of undreamed 
complications with the affairs of the rest of the civilized world, 
it may be worth while to bring to the minds of young people 
the truth that our personal liberty, our freedom to move about, 
to take up callings, and to make the most of ourselves, is not 
a privilege which defends itself ; that it behooves a free people 
not to give up principles for which they and their forefathers 
have been contending during more than eight centuries. 

ALBERT BUSHNELL HART. 



CONTENTS 



CHAPTER I 



COKONATION OATH AND CHARTEE OF HENEY I. (1101) 

Page 

Suggestions 1 

Documents : — 

The Coronation Oath (1100) 1 

The Charter of Henry I. at his Coronation (1101) 2 

Contemporary Exposition : — 

William of Malmesbury, Chronicles of the Kings of England . 5 

Roger of Wendover, Flowers of History 6 

Critical Comment: — 

Hallam, Europe during the Middle Ages 7 

Stubbs, Constitutiorial History of England 7 

Green, Shoj-t History of the English People 7 

Pollock and Maitland, History of English Law 7 

Ransome, Advanced History of England 8 

Gardiner, Students History of England 8 

CHAPTER II 

MAGNA CHAETA (1215) 

Suggestions 9 

Document : — 

Magna Charta (June 15, 1215) 9 

Contemporary Exposition : — 

Roger of Wendover, Flowers of History 25 

Critical Comment : — 

Coke, First Institute of the Laws of England 27 

Burke, Works 27 

Hallam, Europe during the Middle Ages 27 

Palgravb, English Commonwealth 27 

Mackintosh, History of England 28 

Sttjbbs, Constitutional History of England 29 

Green, Short History of the English People 29 



xviii CONTENTS 

Critical Comment, conlinued : — Page 

Bagehot, English Constitution 31 

Taswell-Langmead, English Constitutional History 31 

Von Gneist, History of the English Parliament 32 

Pollock and Maitland, History of English Law 32 

Gardiner, Student's History of England 32 

Ransome, Advanced History of England 32 

CHAPTER III 

THE SUMMONS TO PARLIAMENT (1295) 

Suggestions 34 

Document: — 

Summons to Parliament (Oct. 3, 1295) 34 

Contemporary Exposition : — 

Thomas Cromwell, Letter to John CreJce 35 

Summons in reign of Henry VIII. 36 

Critical Comment : — 

Hallam, Europe during the Middle Ages 37 

Stubbs, Constitutional History of England 38 

Taswell-Langmead, English Constitutional History 38 

^OSTii'En' Anglo-Saxon Freedom 38 

BouTMY, English Constitution 39 

Freeman, House of Lords 39 

Ransome, Advanced History of England 39 

Gardiner, Student's History of England 40 

Adams, Critical Period of English Constitutional History ... 40 

CHAPTER IV 

CONFIRMATIO CHARTARUM (1297) 

Suggestions 42 

Document : — 

" Confrmatio Chartarum" of Edward I. (Nov. 5, 1297) . ... 43 

Contemporary Exposition : — 

Bartholomew de Cotton, Historia Anglicana 45 

Critical Comment : — 

Hallam, Europe diiring the Middle Ages 45 

Macaulat, History of England 46 

Stubbs, Constitutional History of England 46 

Taswell-Langmead, English Constitutional History 46 

Feilden, Short Constitutional History of England 47 

Von Gneist, History of the English Parliament 47 

Taylor, Origin and Growth of the English Constitution .... 47 



CONTENTS xix 

CHAPTER V 

LEGAL PORMS AND JURY TRIALS (1429) 

Page 

Suggestions 49 

Document : — 

Statute: 8 Henry VI. Cap. 12 {\^2%) 49 

Contemporary Exposition : — 

Sir John Foetescue, De Laudibus Legum Anglue 51 

Christopher Saint-German, Doctor and Student 54 

Critical Comment : — 

Blackstone, Commentaries on the Laws of England 54 

Spence, Equitable Jurisdiction of the Court of Chancery ... 56 

Forsyth, History of Trial by Jury 57 

Green, Short History of the English People 59 

Taswell-Langmead, English Constitutional History 60 

Taylor, Origin and Growth of the English Constitution .... 63 

Stevens, Sources of the Constitution of the United States ... 65 

CHAPTER VI 

PETITION OF RIGHT (1628) 

Suggestions 66 

Document : — 

Petition of Right (June 7 , 1628) . 67 

Contemporary Exposition : — 

Charles L, Speech at Prorogation of Parliament (June 26, 1628) 72 

Critical Comment : — 

Hallam, Constitutional History of England 72 

Nugent, Memorials of Hampden 72 

Macatjlay, History of England 74 

Creasy, Rise and Progress of the English Constitution .... 74 

Taylor, Origin and Growth of the English Constitution .... 75 

"VoN Gneist, History of the English Parliament 76 

Gardiner, Constitutional Documents of the Puritan Revolution . . 76 

HosMER, Anglo-Saxon Freedom 77 

CHAPTER VII 

ENGLISH WRITTEN CONSTITUTIONS (1648-1653) 

Suggestions 78 

Documents : — 

The Agreement of the People (Jan. 15, \&49) 79 

The Instrument of Government (Dec. 16, 1653) 85 



XX CONTENTS 

Contemporary Exposition: — Page 

Oliver Cromwell, First Speech to the Sixth Parliament ... 98 

Critical Comment: — 

Hallam, Constitutional History of England 100 

Macaulat, History of England 100 

Bagehot, English Constitution . 101 

Green, Short History of the English People 101 

Taswell-Langmbad, English Constitutional History 103 

Taylor, Origin and Groivth of the English Constitution .... 103 

Gardiner, Constitutional Documents of the Puritan Revolution . . 104 

HoSMER, Anglo-Saxon Freedom 109 

BORGEAUD, Adoption and Amendment of Constitutions . . . . Ill 

BoRGEAUD, Rise of Modem Democracy 1 1 1 

'R Ai<(SOME, Advanced History of England 112 

Medley, Student's Manual of English Constitutional History . . 113 



CHAPTER VIII 

HABEAS CORPUS ACT (1679) 

Suggestions 115 

Document : — 

Habeas Corpus Act {1679) 115 

Contemporary Exposition: — 

Bishop Gilbert Burnet, History of His Own Time . . , . 117 

Critical Comment : — 

Blackstone, Conunentaries on the Laws of England- 118 

Creasy, Rise and Progress of the English Constitution . , . . 118 

HvRV, Right of Personal Liberty 118 

TxTEnso'!^, Libe}-ty of the Subject, etc. ........... 119 

Taswell-Langmead, English Constitutional Histonj 119 

jyiCEY, Study of the Law of the Constitution 120 

May, Constitutional History of England .120 

Taylor, Origin and Growth of the English Constitution . . . . 121 

CHAPTER IX 

THE BILL OF EIGHTS (1689) 

Suggestions 122 

Document : — 

The Bill of Rights {Oct. 25, 16S9) 122 



CONTENTS XXI 

Contemporary Exposition : — Page 

Bishop Gilbert Burnet, History of His Own Time .... 132 

Critical Comment : — 

LuFFMAN, Citizen and Goldsmith 132 

GuizoT, General History of Civilization 133 

Ma.Ca.V'LXY, History of England 133 

Green, Short History of the English People 134 

Taswell-Langmead, English Constitutional History 134 

Taylor, Origin and Growth of the English Constitution . . . . 135 

Hosjier, Anglo-Saxon Freedom 135 

Stevens, Sources of the Constitution of the United States . . . 136 

^ASSOME, Advanced History of England 136 

CHAPTER X 

ACT OF SETTLEMENT (1700-1701) 

Suggestions 138 

Document : — 

Constitutional Provisions in the Act of Settlement (1700-1701) . . 138 

Contemporary Exposition: — 

Bishop Gilbert Burnet, History of His Own Time .... 140 

Critical Comment : — 

Blackstone, Commentaries on the Laws of England 140 

Djcey, Study of the Law of the Constitution 141 

Kansome, Advanced History of England 141 

CHAPTER XI 

SPIEIT OF COLONIAL RIGHTS (1721-1765) 

Suggestions 142 

Document : — 

Extracts from "A Defence of the New-England Charters" (1721) . 142 

Contemporary Exposition: — 

Anonymous, A Plain State of the Argument between Great 

Britain and her Colonies 144 

Anonymous, Proposals for Uniting the English Colonies on the 

Continent of America 146 

Tho-mxs 'PowSAi.i,, Administration of the Colonies {17 Q5) . . , 147 

Anonymous, America's Appeal to the Lmpartial World .... 148 

Critical Comment : — 

"W x-LS-R, An Appeal from the Judgments of Great Britain . . . 150 

MA-RSTIXT.-L, History of the Colonies Planted by the English . . . 152 

Thwaites, The Colonies 153 



xxil CONTENTS 

CHAPTER XII 

THE STAMP ACT CONTROVERSY (1765) 

Page 
Suggestions 155 

Document : — 

Declaration of Rights and Grievances of the Colonists in America 

(Oct. 7, 1765) 155 

Contemporary Exposition: — 

Benjamin Franklin's Examination relative to the Repeal of the 

American Stamp Act 158 

James Otis, Rights of the British Colonies 159 

Sir William Keith, Two Papers on the Subject of Taxing the 

British Colonies in America 160 

JosiAH TuCKEK, Letter from a Merchant in London to his Nephew 

in America 161 

Edmund Burke, Speech on Conciliation with America .... 162 
William Pitt, Earl of Chatham, Speech in the House of 

Lords 163 

William BoLLEN, in J^ourna/s o/" Con/77-ess (1775) 164 

Critical Comment : — 

Macaulay, The Earl of Chatham 164 

Chamberlain, The Revolution Impending ......... 164 

CHAPTEE XIII 

VIRGINIA BILL OF RIGHTS (1776) 
Suggestions 166 

Document : — 

A Declaration of Rights (June 12, 1776) 166 

Contemporary Exposition : — 

George Washington, Works 169 

John Adams, Works .... 170 

Critical Comment: — 

Hitchcock, American State Constitutions 173 

Jameson, Treatise on Constitutional Conventions 174 

Curtis, Constitutional History 1 '4 

BouG^xvD, Adoption and Amendment of Constitutions . . ■ . 1/6 

Bryce, American Commonwealth 1' ' 

ScHOULER, Constitutional Studies 1'° 

Yisn^Ti, Evolution of the Constitution of the United States . . . 178 

Thorpe, Constitutional History of the American Republic ... 179 

Channing, Students' History of the United States 180 



CONTENTS xxiu 

CHAPTER XIV 

DECLARATION OF INDEPENDENCE (1776) 

Page 

Suggestions 182 

Document: — 

The Declaration of Independence (July 4, 1776) 183 

Contemporary Exposition: — 

John Adams, Familiar Letters 188 

David Ramsay, American Revolution 191 

Thomas Jefferson, Works 192 

Critical Comment: — 

Webster, Works 192 

Story, Commentaries 197 

Livermore, An Historical Research 197 

Gre'EJ'I, Short Histori/ of the English People 197 

"VoN HoLST, Constitutional History of the United States .... 198 

Lecky, England in the Eighteenth Century 199 

Ellis, in Winsor, Narrative and Critical History of America . . 200 

FlSKE, American Revolution 202 

Lodge, American Revolution 202 

CHAPTER XV 

THE ARTICLES OF CONFEDERATION (1781) 

Suggestions 204 

Document: — 

Articles of Confederation (1781) • « • 204 

Contemporary Exposition : — 

Pelatiah Webster, Remarks on a Pamphlet 216 

George Washington, Works 218 

Alexander Hamilton, Works 219 

Thomas Jefferson, Works 219 

Critical Comment: — 

Story, Commentaries 220 

Jameson, Treatise on Constitutional Conventions 221 

MuLFORD, The Nation 221 

VoN Holst, Constitutional History of the United States .... 223 

Hart, Federal Government 224 

Ford, Rise and Growth of American Politics 225 

Stevens, Sources of the Constitution of the United States . . . 225 

FiSKE, Critical Period of American History 225 

Fisher, Evolution of the Constitution of the United States . . . 226 



XXIV CONTENTS 

CHAPTER XVI 

THE NORTHWEST ORDINANCE (1787) page 

Suggestions 227 

Document: — 

The Ordinance of 1787 228 

Contemporary Exposition: — 

Nathan Dane, in the Cutlers' Life ofManasseh Cutler .... 237 

Critical Comment: — 

Webster, Works 238 

Chase, Sketch of the History of Ohio 239 

Bancroft, History of the United States 240 

Burnet, Early Settlement of the Northwest Territory 240 

Hoar, Oration at Centennial at Marietta 240 

Hinsdale, The Old Northwest 241 

Cutlers, Life of Manasseh Cutler 242 

CHAPTER XVII 

THE CONSTITUTION OF THE UNITED STATES (1787) 

Suggestions 244 

Document: — 

Constitution of the United States of America (Sept 17, 1787) . . 245 

Contemporary Exposition: — 

Benjamin Franklin, Speech on the Last Day 264 

George Mason, Address to the Citizens of Virginia 267 

The Federalist (No. XLV.) 267 

Alexander Hamilton, Works 268 

George Washington, Works 269 

John Dickinson, Fabius Letters 271 

Tench Coxe, Examination 271 

Thomas Jefferson, Works 272 

Critical Comment: — 

Webster, Works 273 

Stort, Commentaries 274 

Gladstone, Kin Beyond Sea 275 

COOLEY, Constitutional Law 276 

HuRD, Theory of our National Existence 278 

Smith, in Jameson's Essays on Constitutional History , . . . . 279 

Hart, Federal Government 280 

Stevens, /Sources ©/"^^e Constitution of the United States . . . 281 

Brtce, American Commonwealth 282 

Thorpe, Constitutional History of the American People .... 283 

McLaughlin, Social Compact and Constitutional Construction . . 284 



CONTENTS XXV 

CHAPTER XVIII 

WASHINGTON'S FAEEWELL ADDRESS (1796) 

Page 

Suggestions 286 

Document: — 

Washington's Farewell Address to the People of the United States 

(Sept. 17, 1796) 286 

Contemporary Exposition : — 

Jonathan Mitchell Sewall, Oration 306 

Thomas Paine, Oration 307 

Joseph Bltth, Eulogy 308 

John M. Mason, Oration 308 

George R. Minot, Oration 308 

Critical Comment : — 

Sparks, George Washington . 309 

Binnet, Inquiry into the Formation of Washington's Farewell 

Address 309 

Olnet, Growth of our Foreign Policy 310 

CHAPTER XIX 

THE EXTENT OF FEDERAL POWERS (1819) 

Suggestions 312 

Document: — 

Decision in the Case of M'Culloch vs. the State of Maryland 

(1819) 312 

Contemporary Exposition: — 

Anonymous, in Niks' Weekly Register . . 316 

Critical Comment: — 

Story, Commentaries 318 

Hare, American Constitutional Law 319 

WiLLOUGHBY, Supreme Court of the United States 319 

Sumner, History of Banking in the United States 319 

CHAPTER XX 

LIBERTIES OF OTHER AMERICAN PEOPLES (1823) 

Suggestions 321 

Document: — 

The Monroe Doctrine (Dec. 2, 1823) 321 



XXVI CONTENTS 

Contemporary Exposition:— P^ge 

John Quincy Adams, Memoirs 323 

Thomas Jeffekson, Complete Works .......... 325 

James Madison, Works 326 

Daniel Webster, Works 327 

Critical Comment: — 

Dana, Wheaton's Elements of International Law 329 

VoN HoLST, Constitutional History of the United States .... 329 

MoKSE, John Quincy Adams 330 

Gilman, James Monroe 331 

ScHOULER, History of the United States 332 

Tucker, The Monroe Doctrine 333 

Cleveland, Special Message, Dec. 17, \ 895 334 

Olney, Letter to Mr. Bayard 334 

Woolset, Arnerica's Foreign Policy 336 

McMaster, With the Fathers 337 

Reddaway, The Monroe Doctrine 337 

Hart, The Monroe Doctrine 338 

CHAPTER XXI 

THE RIGHTS OF SLAVES AND OF THEIR RACE (1857) 

Suggestions 340 

Documents: — 

Extracts from the Opinion of the Court in the Dred Scott Decision 

(March 6, 1857) 340 

Extract from Justice Benjamin R, Cwtis, dissenting (1857) . . . 346 

Contemporary Exposition: — 

T. H. Benton, Examination of the Decision in the Dred Scott Case 349 

George Bancroft, in Pulpit and Rostrum . 351 

Horace Greeley, American Conflict 352 

Henry Wilson, Rise and Fall of the Slave Power in America . 353 

Critical Comment: — 

Von Holst, Constitutional History of the United States .... 354 

ScHOULER, History of the United States 354 

Rhodes, History of the United States 356 

Bryce, American Commonwealth 356 

CHAPTER XXn 

EMANCIPATION OF THE SLAVES (1862-1863) 

Suggestions 358 

Documents : — 

Preliminary Proclamation of Emancipation (Sept. 22, 1862) . . 358 

Final Proclamation of Emancipation [Jan. \, \8()5) 362 



CONTENTS xxvii 

Contemporary Exposition : — Page 
J. A. Cravens, Speech in House of Representatives against Eman- 
cipation 364 

Benjamin F. Thomas, Speech in House of Representatives for 

Emancipation 365 

IT. S. Grant, General Order 366 

F. B. Carpenter, Six Months at the White House 366 

Critical Comment: — 

Johnston, The United States : Its History and Constitution . . 367 

NiCOLAY AND Hay, Abraham Lincoln : A History 368 

Pierce, Memoir and Letters of Charles Sumner 369 

Dunning, Essays on the Civil War and Reconstruction .... 369 

Morse, Abraham Lincoln 370 

McCall, Thaddeus Stevens 370 

Bancroft, Life of William. H. Seward 371 

Taebbll, Life of Abraham Lincoln 371 

CHAPTER XXIII 

THE RECONSTRUCTION AMENDMENTS (1865-1870) 

Suggestions 373 

Documents : — 

Thirteenth Amendment (1865) 373 

Fourteenth Amendment (1868) 373 

Fifteenth Amendment (1870) 375 

Contemporary Exposition : — 

A. H. Coffroth, of Pennsylvania, in Congressional Globe . . 375 

J. S. Brotvn, of Wisconsin, in Congressional Globe .... 376 

James G. Blaine, Twenty Years of Congress 376 

Critical Comment: — 

Lowell, Prose Works 380 

CooLEY, Constitutional Law 381 

Bryce, American Commonwealth 381 

Dunning, Essays on the Civil War and Reconstruction .... 382 

McLaughlin, History of the American Nation 384 

Hart, Salmon Portland Chase 386 

CHAPTER XXIV 

LIBERTY IN UNITED STATES COLONIES AND DEPENDEN- 
CIES (1898-1899) 

Suggestions 388 

Documents : — 

Extracts from President McKinley's Annual Message (Dec. 5, 1898) 388 

Extracts from President McKinley's Annual Message (Dec. 5, 1899) 392 



xxviii CONTENTS 

Contemporary Exposition :— Page 

Pkesident William McKinley, Home Market Speech . . . 393 

Secretaet John D. Long, Home Market Speech 399 

KiCHAKD Olney, Groioth of our Foreign Policy 401 

Critical Comment: — 

Adams, Imperialism 402 

Randolph, Foreign Policy of the United States 403 

Sumner, Conquest of the United States by Spain 404 

ScHUEZ, American Imperialism 406 

Hoar, No Constitutional Power to conquer Foreign Nations . . . 408 
Burgess, Hoiv may the United States govern its Extra- Continental 

Territory? 411 

Hart, Territorial Problems . 412 

Abbott, Expansion, but not Imperialism 414 

Lodge, Retention of the Philippine Islands 416 

GiDDiNGS, Democracy and Empire 421 



APPENDICES 

APPENDIX A. — Essentials in English Constitutional History 423 

APPENDIX B. — Essentials in American Constitutional His- 
tory 427 

APPENDIX C — Text of THE Habeas Corpus Act, 1679 ... 431 

APPENDIX D. — List of Authors Cited 440 

INDEX 449 



LIBEETY DOCUMENTS 



Chaptee I 

CORONATION OATH AND CHARTER 
OF HENRY L (1101) 

SUGGESTIONS 

This Charter was published by Henry I. on his accession to the 
Crown. Copies were despatched to the several counties and depos- 
ited in the principal monasteries. The Charter is in form an ampli- 
fication of his Coronation Oath, the exact words of which are found 
in the form used at the Coronation of King Ethelred II. [978-1016]. 

Before reading the Coronation Oath and Charter of Liberties of 
Henry I. the elementary history of Teutonic migration should be 
examined critically, and the causes which led the Teuton to settle in 
Britain should be noted. 

The partial amalgamation of the Teutonic people with the Celtic 
aborigines in Britain during the period of the Heptarchy ; the strong 
characteristics of love of liberty and freedom of government which 
mark the race throughout its political history, and which are dis- 
coverable in their primitive institutions ; the development of the land 
tenure ; and the feudal system as individualized by William I. in 
organizing Norman rule in Engiaiid ; — each of these essential histor- 
ical conditions must be examined before this document and Henry's 
policy can be fully understood. 

The charter itself demands attention before other documents can be 
considered, because it contains, though possibly unnoticeable at the 
first reading, the great doctrine of the future — the equality in rights 
of freemen. 

For Topics covering such expository reading note Essentials in 
Early Teutonic History, Appendix A. 

DOCUMENTS 
The Coronation Oath (iioo) 

In the name of Christ I promise these three things William 

to the Christian people over whom I rule. In the ^V^^,!*^,' q'^'^* 

first place that I will endeavour and use all material translated by 

means in order that the Church of God and all the 1^,™'^"^ ^- , 
^ ,„,,,., . , , Clapp, Clerk 

people of Christ may enjoy a true peace under our Sup. Jud. Ct. 

government for all time; next, that I will interdict of Mass. (1900) 

1 



HENRY L'S CHARTER 



[Ch. I 



robbery and all forms of injustice; third, that in all 
judicial proceedings I will advance justice and 
mercy, in order that to me and you the gracious 
and merciful God may extend his mercy. 



The Statutes 
of the Realm, 
i. 1, translat- 
ed by Henry 
A. Clapp. 
(1900) 
In form an 
amplification 
of tlie cove- 
nant made 
by tbe king 
in his coro- 
nation oath. 
Tliis is the 
only legisla- 
tive enact- 
ment during 
the reign of 
Henry I. 
See Magna 
Charta, Art. i 



The Vassals : 
see Magna 
Charta, Art. ii 
"Men" 
wherever 
used in this 
charter 
means " feu- 
dal depend- 
ents." 

Eelief," a 
payment in 
money to the 
king by the in- 
coming heir 
vipon admis- 
sion into an 
inheritance. 
This was de- 
manded by 



The Charter of Henry I. at his Coronation (1101) 

In the year of the Incarnation of our Lord one 
thousand one hundred and one. Henry, son of 
King William, after the death of his brother Wil- 
liam, by the grace of G-od King of the English, to 
all the faithful sends greeting. 

1. Know ye that I have been, by the mercy of 
God and by the barons in council, crowned king of 
this same kingdom of all England; and since the 
kingdom has been oppressed by unjust exactions I, 
through the fear of God and the love I have to- 
wards you, do in the first place make free the holy 
church of God, so that I will neither sell nor put to 
rent, nor upon the death of an archbishop or of a 
bishop or of an abbot wall I accept anything from 
the demesne of the church or from its men until 
a successor has taken the place. And all evil 
customs by which the kingdom of England has 
been unjustly oppressed I will do away with, — 
which evil customs I herein indicate: 

2. If any one of my barons, or of my earls, or 
of any other vassal who hold their estates of me 
shall die, his heir shall not redeem his land as he 
did in the time of my brother, but shall relieve 
said land by just and lawful reliefs. In like 
manner the men of my barons shall relieve their 
lands from those of w-hom they hold, by a just and 
lawful relief. 

3. And if any of my barons, or of any^ other of 
my men, shall wish to give in marriage his daughter, 
or his sister, or his niece or other female relations, 
let him consult me in the matter ; but neither will 
I receive anything from him for the permission nor 



1101] TEXT 3 

will I forbid him to give her in marriage unless he Henry I., as 

shall wish to join her to one of my enemies. And cessors.^^But 

if upon the death of a baron, or of an}' other of the promise 

my men, a daughter shall survive as his heir I will a^^Jtixrn'^V^ 

give her in marriage with her lands, after taking the equitable 

counsel of my barons. And if, upon the death ?^^^ '^"f**i'?i 

'' ' ^ instead of the 

of a man, his wife shall survive and shall be cruel exac- 

without children she shall have her dowry and tions made 

T T -11 J • 1 . ^^ ^'^^ reigns 

right to marry, and I will not give her m mar- of Wm. I. 

riage to any husband except in accordance with ^^<i y^^'oi. II. 
her wish. Marriage: 

see Magna 

4. If a wife with children shall survive her hus- Charta, 

band, such a one shall have her dowry and right to •^^*'- ^"^• 

maiT}' whilst she properly preserves her relation (to 

the king as lord paramount), and I will not give 

her in marriage except in accordance with her wish. 

And the guardian of the estate and the children 

shall be either the wife or some one of the near 

kindred who ought justly so to be. And I direct 

that my barons conduct themselves in like manner 

towards the sous, daughters, or wives of their 

men. 

5. The common tribute for viintage which was "Common 
collected through cities and counties and which was tribute " 

. , ,. ^ TT-- T-. 1 T J, • 11, (inonetagiuru) 

not known in the time or King Kdward, this shall -^as a pay- 
not be from henceforth, and I altogether forbid it. ment by the 
If any one, whether an officer of the mint or another, prevent^ de- 
be taken with false money about him, let due justice preciation or 
be done in the matter. coinTe.''^ 

6. All suits and dues which were owing to my 
brother I forgive, excepting my just rents, and 
excepting those which were agreed upon for the 
inheritances of others or for those properties which 
more justly pertained to others. And if any one 
has agreed to give anything on account of his own 
inheritance, that I forgive, together with all reliefs 
which were agreed to be given for actual 
inheritances. 



HENRY i:S CHARTER 



[Ch. I 



See Magna 
Charta, Art. 
xxvii. 



The estate 
was to be 
distributed 
as the de- 
ceased ought 
to distribute 
it, — a por- 
tion to tlie 
churcli in- 
cluded. 

See Magna 
Charta, Art, 

XX. 



The only un- 
popular 
clause in 
the charter. 

William I. 



Edward the 

Confessor, 

1042. 

This article 
is really in- 
tended to 
protect the 



7. And if any of my barons or feudal dependents 
shall fall sick, according as he shall give away or 
shall arrange to give away his money, I concede 
that it shall be given. But if, prevented by military 
service or physical infirmity, he shall not give away 
his money or arrange to give it, his wife or children 
or relatives and lawful heirs shall divide it up for 
the good of his soul as shall seem best to them. 

8. If any of my barons or feudal dependents 
shall incur a forfeiture, he shall not give surety in 
the way of an arbitrary mulct of money as he did in 
the time of my father or my brother, but according 
to the mode of forfeiture he shall make reparation 
as he would have made it before my father's time, 
in the time of my other predecessors. But if he 
shall have been convicted of treason or an infamous 
crime, as shall be just so he shall make reparation. 

9. All murders previous to the day of my coro- 
nation I pardon, and for those which shall be 
committed henceforth just reparation shall be made 
according to the law of King Edward. 

10. The forests I have, with the general consent 
of my barons in council, retained in my own posses- 
sion as my father held them. 

11. To soldiers who hold their lands by knightly 
service I give such lands as of my own gift, all arable 
portions of the same to be free from all amercement 
and other burdens, that as they are thus substantially 
relieved they may keep themselves well furnished 
both with horses and arms for ray service and the 
defence of my kingdom. 

12. I establish and henceforth undertake to 
maintain a firm peace in all my kingdom. 

13. I give back to you the law of King Edward, 
with those emendations which my father with the 
council of his barons made upon it. 

14. If any one has taken aught from my property 
or the property of another since the death of my 
brother William, let it all be restored at once with- 



1135-1235] CONTEMPORARY EXPOSITION 



out other amends ; and if any one hereafter shall 
retain anything thus taken, he shall make heavy 
restitution above what shall be found to have been 
taken. 



privileges of 
the people. 



Witnesses : — 

Maurice bishop of London, 
Gundolf bishop, 
William bishop elect, 
Henry earl, 
Simon earl 
Walter Giffard, 
Robert de Montfort, 
Roger Bigot, 
Henry de Portous, 
at London when I was crowned. 



Note the few 
witnesses 
compared 
with Magna 
Cliarta. 
This charter 
was renewed 
by Stephen 
and Henry 
II., and 
served in 
John's reign 
as the text 
upon which 
the barons 
founded 
their claim 
for restora- 
tion of " an- 
cient liber- 
ties." 



CONTEMPORARY EXPOSITION 

WILLIAM OF MALMESBURT (1135) 

. . . He (Henry) was elected king : though some trifling dis- 
sensions had first arisen among the nobility, which were allayed 
chiefly through the exertions of Henry, Earl of Warwick. . . . 

He immediately promulgated an edict throughout England, 
annulling the illegal ordinances of his brother, and of Ranulph ; 
he remitted taxes ; released prisoners ; drove the flagitious 
from court ; restored the nightly use of lights within the palace, 
which had been omitted in his brother's time ; and renewed 
the operation of the ancient laws, confirming them with his 
own oath, and that of the nobility, that they might not be 
eluded. 

A joyful day then seemed to dawn on the people, when the 
light of fair promise shone forth after such repeated clouds of 
distress. 



William op Malmesbury, Chronicles of the Kings of England. (Giles's 
Translation) V. 125. 



6 HENRY I.'S CHARTER [Ch. I 

ROGER OF WENDOVER (1235) 

To induce them (the barons) to espouse his cause and make 
him king, he promised them to revise and amend the iaws 
by which England had been oppressed in the time of his 
deceased brother. To this the clergy and people replied that, 
if he would confirm to them by charter all the liberties and 
customs which were observed in the reign of the holy King 
Edward, they would accede to his wishes and make him their 
king. This Henry readily engaged to do, and, confirming the 
same by an oath, he was crowned king at Westminster, on 
the day of the Annunciation of St. Mary, with the acclamations 
of the clergy and people ; after which he caused these prin- 
ciples to be reduced to writing, to the honour of the holy church 
and the peace of his people. . . . 

There were as many of these charters made as there are 
counties in England, and by the king's orders they were placed 
in the abbeys of each county for a memorial. 

Roger of Wendoveb, Flowers of History. (Giles's Translation) I. 448. 



CRITICAL COMMENT 

HALLAM (1818) 

Nor does the charter of Henry I., though so much celebrated, 
contain anything specially expressed but a remission of unrea- 
sonable reliefs, wardships, and other feudal burdens. It pro- 
ceeds, however, to declare that he gives his subjects the laws 
of Edward the Confessor, with the emendations made by his 
father with consent of his barons. . . . 

The people had begun to look back to a more ancient stand- 
ard of law. The Norman conquest, and all that ensued upon 
it, had endeared the memory of their Saxon government. Its 
disorders were forgotten, or rather were less odious to a rude 
nation, than the coercive justice by which they were afterward 
restrained. Hence it became the favourite cry to demand the 
laws of Edward the Confessor ; and the Normans themselves, 
as they grew dissatisfied with the royal administration, fell into 



1818-1895] CRITICAL COMMENT " 

these English sentiments. But what these laws were, or more 
properly, perhaps, these customs, subsisting in the Confessor's 
age, was not very distinctly understood. 

So far, however, was clear, that the vigorous feudal servi- 
tudes, the weighty tributes upon poorer freemen, had never 
prevailed before the conquest. In claiming the laws of Edward 
the Confessor, our ancestors meant but the redress of griev- 
ances which tradition told them had not always existed. 

Hei^kt Hallam, Europe During the Middle Ages. I. 349. 

STUBBS (1873) 

The understanding to govern well was made not only with 
the archbishop as the first constitutional adviser of the crown, 
but with the whole nation; it was embodied in a charter 
addressed to all the faithful, and attested by the witan who 
were present, the paucity of whose names may perhaps in- 
dicate the small number of powerful men who had as yet ad- 
hered to him. . . . The form of the charter forcibly declares 
the ground which he was taking. . . . Perhaps the most sig- 
nificant articles of the whole document are those by which he 
provided that the benefit of the feudal concessions shall not be 
engrossed by the tenants in chief : ' in like manner shall the 
men of my barons reUeve their lands at the hand of their lords 
by a just and lawful relief.' 

William Stubbs, Constitutional History of England. I. 330. 

J. R. GREEN (1874) 

Henry's charter is important, not merely as the direct pre- 
cedent for the Great Charter of John, but as the first limitation 
which had been imposed on the despotism established by the 
conquest. 

J. R. Green, Short History of the English People. Chap. II., Sec. VI., p. 91.^ 

POLLOCK AND MAITLAND (1895) 

During the whole Norman period there was very little legis- 
lation. ... It seems probable that Rufus set the example of 
granting charters of liberties to the people at large. In 1093, 
sick and in terror of death, he set his seal to some document 



8 HENRY I.'S CHARTER [Ch. I 

that has not come down to us. Captives were to be released, 
debts forgiven, good and holy laws maintained. . . . Henry at 
his coronation, compelled to purchase adherents, granted a 
charter full of valuable and fairly definite concessions. He 
was going back to his father's ways. (William I.) . . . Above 
all the laga Eachvardi as amended by William I. was to be 
restored. 

Pollock and Maitland, History of English Law. I. 73. 
RANSOME (1895) 

Henry's charter is a very important document, for it shows us 
what were the chief grievances of which nobles and clergy com- 
plained, and the way in which they might be remedied. 

Cyril Ransome, Advanced History of England. 112. 
GARDINER (1895) 

The charter of Henry I., which had been produced at St. 
Paul's the year before (1213), was again read, and all present 
swore to force John to accept it as the rule of his own 
government, . . - 

Magna Charta, or the Great Charter, as the articles were 
called after John confirmed them, was won by a combination 
between all classes of freemen, and it gave I'ights to them all. 

S. R. Gardiner, Student's History of England. 181. 



1215] MAGNA CHARTA — TEXT 



Chapter II 
MAGNA CHARTA (1215) 

SUGGESTIONS 

This Charter, signed by King John, June 15th, 1215, was the result of 
the struggle between the king and the barons. Through the winter 
of 1215, the barons had presented themselves in arms before the 
king, and preferred their clainrs — a resumption of the old English 
customs and common law, against which the king was openly de- 
fiant. At Easter the barons again renewed their demands. London, 
Exeter, Lincoln — one by one — city and county joined the barons 
in defiance of the king. Unconditional submission followed the dis- 
cussion of the document ; it was agreed upon and signed in a single 
day. One copy of it still remains in the British Museum. 

As Magna Charta forms the basis of all later English and American 
written statements of free institutions, the document as a whole should 
be read with care, although many of its articles have ceased to have a 
direct relation with present history. Each article illuminates the legal 
and constitutional status of the thirteenth century, and should be 
examined with that point in mind. Articles 36, 39, and 40, the two 
fundamental principles of all later constitutional government, should 
be committed to memory, since they are many times referred to 
throughout this volume. 

For Outlines and Material, see Appendix A. 



DOCUMENT 
Magna Charta (1215) 

The Great Charter of King John, granted June 15, 
A. D. 1215. 

John, by the Grace of God, King of England, The Statutes 
Lord of Ireland, Duke of Normandy, Aquitaine, gljg trai^'- 
and Count of Anjou, to his Archbishops, Bishops, literated 
Abbots, Earls, Barons, Justiciaries, Foresters, ^^^^ ^' ^' 
Sheriffs, Governors, Officers, and to all Bailiffs, and (1853). 



10 MAGNA CHART A [Ch. II 

Ms faithful subjects, greeting. Know ye, that we, 
in the presence of God, and for the salvation of our 
soul, and the souls of all our ancestors and heirs, 
and unto the honour of God and the advancement 
of Holy Church, and amendment of our Realm, by 
advice of our venerable Fathers, Stephen, Arch- 
bishop of Canterbury, Primate of all England and 
Cardinal of the Holy Roman Church ; Henry, Arch- 
bishop of Dublin; William, of London; Peter, of 
Winchester; Jocelin, of Bath and Glastonbury; 
Hugh, of Lincoln ; Walter, of Worcester ; William, 
of Coventry ; Benedict, of Rochester — Bishops : 
of Master Pandulph, Sub-Deacon and Familiar of 
our Lord the Pope ; Brother Aymeric, Master of the 
Note the Knights-Templars in England ; and of the noble 
Sease^o'f the P^^'^^^^' William Marescall, Earl of Pembroke; 
baronage William, Earl of Salisbury ; William, Earl of 
between 1101 'W'arren; William, Earl of Arundel; Alan de Gal- 
loway, Constable of Scotland ; Warin FitzGerald, 
Peter FitzHerbert, and Hubert de Burgh, Sen- 
eschal of Poitou ; Hugh de Neville, Matthew Fitz- 
Herbert, Thomas Basset, Alan Basset, Philip of 
Albiney, Robert de Eoppell, John Mareschal, John 
FitzHugh, and others, our liegemen, have, in the 
first place, granted to God, and by this our pres- 
ent Charter confirmed, for us and our heirs for 
ever : 
The Church: 1. That the Church of England shall be free, and 
?^,® ?®'^'^y have her whole rights, and her liberties inviolable ; 
Art. I. ' ^iid we will have them so observed that it may 
appear thence that the freedom of elections, which 
is reckoned chief and indispensable to the English 
Church, and which we granted and confirmed by our 
Charter, and obtained the confirmation of the same 
from our Lord the Pope Innocent TIL, before the 
discord between us and our barons, was granted of 
mere free will ; which Charter we shall observe, and 
we do will it to be faithfully observed by our heirs 
for ever. 



1215] TEXT 11 

2. We also have granted to all the freemen of Reliefs: see 
our kingdom, for us and for our heirs for ever, all charter Art. 
the underwritten liberties, to be had and holden by II. 

them and their heirs, of us and our heirs for ever : 
If any of our earls, or barons, or others, who hold 
of us in chief by military service, shall die, and at 
the time of his death his heir shall be of full age, 
and owe a relief, he shall have his inheritance by 
the ancient relief — that is to say, the heir or heirs Earl's or 
of an earl, for a whole earldom, by a hundred j.„j[gP %1Q)() 
pounds ; the heir or heirs of a baron, for a whole Knight's 
barony, by a hundred pounds; the heir or heirs of a ^^elief, £5. 
knight, for a whole knight's fee, by a hundred shil- 
lings at most; and whoever oweth less shall give 
less, according to the ancient custom of fees. 

3. But if the heir of any such shall be under age, "Wardship: 
and shall be in ward, when he comes of age he shall |®^ ^^'^''7 
have his inheritance without relief and without fine. Art. HI. 

4. The keeper of the land of such an heir being 
under age, shall take of the land of the heir, none 
but reasonable issues, reasonable customs, and 
reasonable services, and that without destruction 
and waste of his men and his goods ; and if he 
commit the custody of any such lands to the sheriff, 
or any other who is answerable to us for the issues of 
the land, and he shall make destruction and waste 
of the lands which he hath in custody, we will take 
of him amends, and the land shall be committed to 
two lawful and discreet men of that fee, who shall 
answer for the issues to us, or to him to whom we 
shall assign them ; and if we sell or give to any one 
the custody of any such lands, and he therein make 
destruction or waste, he shall lose the same custody, 
which shall be committed to two lawful and discreet 
men of that fee, who shall in like manner answer to 
us as aforesaid. 

5. But the keeper, so long as he shall have the 
custody of the land, shall keep up the houses, parks, 
warrens, ponds, mills, and other things pertaining 



12 MAGNA CHARTA [Ch. II 

to the land, out of the issues of the same land ; and 
shall deliver to the heir, when he comes of full age, 
his whole land, stocked with ploughs and carriages, 
according as the time of wainage shall require, and 
the issues of the land can reasonably bear. 

6. Heirs shall be married without disparagement, 
and so that before matrimony shall be contracted, 
those who are near in blood to the heir shall have 
notice. 

7. A widow, after the death of her husband, shall 
forthwith and without difficulty have her marriage 
and inheritance ; nor shall she give anything for her 
dower, or her marriage, or her inheritance, which 
her husband and she held at the day of his death ; 
and she may remain in the mansion house of her 
husband forty days after his death, within which 
time her dower shall be assigned. 

See Henry 8. No widow shall be distrained to marry herself, 

L's Charter, g^ j^^g ^^g g]^g j^g^g ^ mind to live without a husband ; 

but yet she shall give security that she will not 

marry without our assent, if she hold of us ; or 

without the consent of the lord of whom she holds, 

if she hold of another. 

9. Neither we nor our bailiffs shall seize any 

land or rent for any debt so long as the chattels 

of the debtor are sufficient to pay the debt; nor 

shall the sureties of the debtor be distrained so 

long as the principal debtor has sufficient to pay 

the debt; and if the principal debtor shall fail in 

the payment of the debt, not having wherewithal 

to pay it, then the sureties shall answer the debt ; 

and if they will they shall have the lands and rents 

of the debtor, until they shall be satisfied for the 

debt which they paid for him, unless the principal 

debtor can show himself acquitted thereof against 

the said sureties. 

The Jews 10. If any one have borrowed anything of the 

were the Jews, more or less, and die before the debt be 

king's bonds- ' 

men: this is satisfied, there shall be no mterest paid for that 



1215] TEXT 13 

debt, so loDg as the heir is under age, of whomso- the begin- 
ever he may hold ; and if the debt falls into our leo-iliation 
hands, we will only take the chattel mentioned in against Jews, 
the deed. 

11. And if any one shall die indebted to the 
Jews, his wife shall have her dower and pay 
nothing of that debt; and if the deceased left 
children under age, they shall have necessaries 
provided for them, according to the tenement of 
the deceased; and out of the residue the debt shall 
be paid, saving, however, the sei'vice due to the 
lords, and in like manner shall it be done touching 
debts due to others than the Jews. 

12. No SCUTAGE OR AID SHALL BE IMPOSED IN 
OUR KINGDOM, UNLESS BY THE GENERAL COUNCIL OF 

OUR KINGDOM ; except for ransoming our person, 

making our eldest son a knight, and once for 

marrying our eldest daughter ; and for these there 

shall be paid no more than a reasonable aid. In ^sTote the 

like manner it shall be concerning the aids of the liberty given 
^., , -r T to London. 

City ot London. 

13. And the City of London shall have all its 
ancient liberties and free customs, as well by land 
as by water; furthermore, Ave will and grant that 
all other cities and boroughs, and towns and ports, 
shall have all theii' liberties and free customs. 

14. And for holding the general council of The aids 

THE KINGDOM CONCERNING THE ASSESSMENT OF AIDS, gi^^^n by citi- 
zens at tins 
EXCEPT IN THE THREE CASES AFORESAID, AND FOR time tO the 

THE ASSESSING OF SCUTAGES, WE SHALL CAUSE TO Barons 

gained them 

BE SUMMONED THE ARCHBISHOPS, BISHOPS, ABBOTS, (i^jg clause 
EARLS, AND GREATER BARONS OP THE REALM, SIN- and became 
GLY BY OUR LETTERS. AnD FURTHERMORE, WE Parlfamen^- 
SHALL CAUSE TO BE SUMMONED GENERALLY, BY OUR ary represen- 
SHERIFFS AND BAILIFFS, ALL OTHERS WHO HOLD ^5:*^*^^ "\ 

House of 

OF us IN CHIEF, FOR A CERTAIN DAY, THAT IS TO CommonS. 
SAY, FORTY DAYS BEFORE THEIR MEETING AT LEAST, 
AND TO A CERTAIN PLACE; AND IN ALL LETTERS OF 
SUCH SUMMONS WE WILL DECLARE THE CAUSE OP 



14 



MAGNA CHART A 



[Ch. II 



IS'ote the 
principle of 
tlie govern- 
ment: — 
An heredi- 
tary sov- 
ereign, bound 
to summon 
and consult 
a parliament 
of the whole 
realm. 



Services. 



The Ct. of 
Com. Pleas 
met at West- 
minster from 
this time on. 
Novel dis- 
seisin = dis- 
possession. 
Mort d'ances- 
tor = death 
of the ances- 
tor; that is, 
in cases of 
disputed suc- 
cession to 
land. 

Darrein Pre- 
sentment = 
last presen- 
tation to a 
benefice. 
The word 
Assize here 
means " an 
assembly of 
knights or 
other sub- 
stantial per- 
sons, held at 
a certain 
time and 
place where 
they sit with 
the Justice. 
' Assisa ' or 
' Assize ' is 



SUCH SUMMONS. AnD, SUMMONS BEING THUS MADE, 
THE BUSINESS SHALL PROCEED ON THE DAY AP- 
POINTED, ACCORDING TO THE ADVICE OF SUCH AS 
SHALL BE PRESENT, ALTHOUGH ALL THAT WERE 
SUMMONED COME NOT. 

15. We will not for the future grant to any one 
that he may take aid of his own free tenants, unless 
to ransom his body, and to make his eldest son a 
knight, and once to marry his eldest daugiiter ; and 
for this there shall be only paid a reasonable aid. 

16. No man shall be distrained to perform more 
service for a knight's fee, or other free tenement, 
than is due from thence. 

17. Common pleas shall not follow our court, 
but shall be holden in some place certain. 



18. Trials upon the Writs of Novel Disseisin, 
and of Mort d'ancestor, and of Darrein Present- 
ment, shall not be taken but in their proper coun- 
ties, and after this manner : We, or if we should 
be out of the realm, our chief justiciary, will send 
two justiciaries through every county four times 
a year, who, with four knights of each county, 
chosen by the county, shall hold the said assizes 
in the county, on the day, and at the place ap- 
pointed. 



19. And if any matters cannot be determined 
on the day appointed for holding the assizes in 
each county, so many of the knights and free- 
holders as have been at the assizes aforesaid shall 
stay to decide them as is necessary, according as 
there is more or less business. 



1215] TEXT 15 

also taken 
for the court, 

20. A freeman shall not be amerced for a small at^^hich the" 

offence, but only according to the degree of the writs of As- 

offence ; and for a great crime according to the ?^^ ^^,t 

heinousness of it, saving to him his contenement ; These as- 

and after the same manner a merchant, saving to sizes, though 

him his merchandise. And a villein shall be ^qyh not an- 

amerced after the same manner, saving to him his nulled until 

wainage, if he falls under our mercy ; and none see^enrv 

of the aforesaid amerciaments shall be assessed I.'s Charter, 

but by the oath of honest men in the neighbour- ^^*" V™- 
, -, Contene- 

hood. jjjent . 

"That by 
which a per- 
son subsists 
and which is 
essential to 
his rank in 
life." 

21. Earls and barons shall not be amerced Clauses 20- 

but by their peers, and after the degree of the 21-22 were 
a, " intended to 

offence. prevent ty- 

rannical 

22. No ecclesiastical person shall be amerced extortions. 
for his lay tenement, but according to the propor- 
tion of the others aforesaid, and not according to 

the value of his ecclesiastical benefice. 

23. Neither a town nor any tenant shall be dis- Distrained — 
trained to make bridges or embankments, unless compelled, 
that anciently and of right they are bound to do it. 

24. No sheriff, constable, coroner, or other our This article 

bailiffs, shall hold " Pleas of the Crown." marks an era 

m history oi 
criminal law 
by securing 
trial of all 
serious 
crimes before 
King's 
Justices. 

25. All counties, hundreds, wapentakes, and 
trethings, shall stand at the old rents, without any 
increase, except in our demesne manors. 



16 MAGNA CHART A [Ch. II 

Usually one 26. If any one holding of us a lay fee die, and 

third to the ^]^g stieriff, or our bailiffs, show our letters patent 
wife and one „ . , , , . , , , i -,-\ 

third to the of summons tor debt which the dead man did owe 

heirs. See to us, it shall be lawful for the sheriff or our bail- 
Charter Art. if^ to attach and register the chattels of the dead, 
Vn. found upon his lay fee, to the amount of the debt, 

by the view of lawful men, so as nothing be re- 
moved until our whole clear debt be paid ; and the 
rest shall be left to the executors to fulfil the testa- 
ment of the dead ; and if there be nothing due from 
him to us, all the chattels shall go to the use of 
the dead, saving to his wife and children their 
reasonable shares. 

27. If any freeman shall die intestate, his chat- 
tels shall be distributed by the hands of his nearest 
relations and friends, by view of the Church, saving 
to every one his debts which the deceased owed 
to him. 

28. No constable or bailiff of ours shall take 
corn or other chattels of any man unless he pres- 
ently give him money for it, or hath respite of pay- 
ment by the good- will of the seller. 

29. No constable shall distrain any knight to 
give money for castle-guard, if he himself will do 
it in his person, or by another able man, in case 
he cannot do it through any reasonable cause. 
And if we have carried or sent him into the army, 
he shall be free from such guard for the time he 
shall be in the army by our command. 

30. No sheriff or bailiff of ours, or any other, 
shall take horses or carts of any freeman for car- 
riage, without the assent of the said freeman. 

31. Neither shall we nor our bailiffs take any 
man's timber for our castles or other uses, unless 
by the consent of the owner of the timber. 

Confiscation 32. We will retain the lands of those convicted 
of the ^'^"^as ^^ felony only one year and a day, and then they 

not wholly shall be delivered to the lord of the fee. 

abrogated 
untillSIO. 



1215] TEXT 17 

33. All ky dells (wears) for the time to come To prevent 
shall be put down in the rivers of Thames and Private 
Medway, and throughout all England, except upon tio^ ^ gg^^ 

the sea-coast. in public 

waters. 
The purport 
of this was to 
prevent en- 
closures of 
common fish- 
ing rights. 
These wears 
are now 
called 

"kettles " or 
"kettle- 
nets" in 
Kent and 
Cornwall. 

34. The writ which is called prcBcipe, for the fu- Protection of 

ture, shall not be made out to any one, of any tene- ?.^^: juris- 

' J ' J diction of 

ment, whereby a freeman may lose his court. Court baron. 

35. There shall be one measure of wine and one 
of ale through our whole realm ; and one measure 
of corn, that is to say, the London quarter; and 
one breadth of dyed cloth, and russets, and haber- 
jeets, that is to say, two ells within the lists ; and 
it shall be of weights as it is of measures. 

36. NOTHINa FROM HENCEFORTH SHALL BE GIVEN The basis of 
OR TAKEN FOR A WRIT OF INQUISITION OF LIFE OR pej^o^al ^ 
LIMB, BUT IT SHALL BE GRANTED FREELY, AND NOT Liberty and 
DENIED. forerunner Of 

Habeas Cor- 
pus, 1679. 

37. If any do hold of us by fee-farm, or by 

socage, or by bui-gage, and he hold also lauds of Socage = 

any other by knight's service, we will not have the J^nds held 

Dv LPnurG or 
custody of the heir or land, which is holden of inferior 

another man's fee by reason of that fee-farm, office in hus- 

socage, or burgage ; neither will we have the cus- „^'^ ^^' 

ronnRl 

tody of the fee-farm, or socage, or burgage, unless delivery of 
knight's service was due to us out of the same fee- some small 
farm. We will not have the custody of an heir, nor toliu'^ofThe 
of any land which he holds of another by knight's king's own- 
service, by reason of any petty serjeanty by which ^^'^^iP of 



18 



MAGNA CHART A 



[Ch. II 



Law — i. e. 
his oatli. 

See the Seal 
of the Su- 
preme Court 
of Massachu- 
setts. 
This vital 
principle of 
personal 
liberty ante- 
dates Magna 
Charta, and 
was defined 
more clearly 
in "Habeas 
Corpus," and 
Trial by Jury. 
Called by 
Creasy the 
" crowning 
glories " of 
the Great 
Charter. 

The trading 
class begins 
to show 
power at this 
time. 



See Article 
41. 



The return 
of an estate 
to a lord, 
either on 
failure of 



he holds of us, by the service of paying a knife, an 
arrow, or the like. 

38. No bailiff from henceforth shall put any man 
to his law upon his own bare saying, without credi- 
ble witnesses to prove it. 

39. No FREEMAN SHALL BE TAKEN OR IMPRISONED, 
OR DISSEISED, OR OUTLAVTED, OR BANISHED, OR ANY 
WAYS DESTROYED, NOR WILL WE PASS UPON HIM, ' 
NOR WILL WE SEND UPON HIM, UNLESS BY THE LAW- 
FUL JUDGMENT OF HIS PEERS, OR BY THE LAW OP 
THE LAND. 

40. We will sell to no man, we will not 
deny to any man, either justice or right. 

41. All merchants shall have safe and secure 
conduct, to go out of, and to come into England, and 
to stay there and to pass as well by land as by 
water, for buying and selling by the ancient and 
allowed customs, without any unjust tolls; except 
in time of war, or when they are of any nation at 
war with us. And if there be found any such in our 
land, in the beginning of the war, they shall be at- 
tached, without damage to their bodies or goods, 
until it be known unto us, or our chief justiciary, 
how our merchants be treated in the nation at war 
with us ; and if ours be safe there, the others shall 
be safe in our dominions. 

42. It shall be lawful, for the time to come, for 
any one to go out of our kingdom, and return safely 
and securely by land or by water, saving his alle- 
giance to us ; unless in time of war, by some short 
space, for the common benefit of the realm, except 
prisoners and outlaws, according to the law of the 
land, and people in war with us, and merchants who 
shall be treated as is above mentioned. 

43. If any man hold of any escheat as of the 
honour of Wallingford, Nottinghain, Boulogne, Lan- 
caster, or of other escheats which be in our hands, 
and are baronies, and die, his heir shall give no 
other relief, and perform no other service to us than 



1215] TEXT 19 

he would to the baron, if it were in the baron's tenant's 
hand ; and we will hold it after the same manner as hfs^commit- 
the baron held it. ting felony. 

44. Those men who dwell without the forest from Before 

henceforth shall not come before our justiciaries of 5f,^^!J^ 

the forest, upon common summons, but such as are tendance at 

impleaded, or as sureties for any that are attached ^^^ Forest 
r. ^, . • 4.1 ^ J. Court was 

for something concerning the lorest. compulsory. 

45. We will not make any justices, constables, 
sheriffs, or bailiffs, but of such as know the law of 
the realm and mean duly to observe it. 

46. All barons who have founded abbeys, which 
they hold by charter from the kings of England, or 
by ancient tenure, shall have the keeping of them, 
when vacant, as they ought to have. 

47. All forests that have been made forests in 
our time shall forthwith be disforested ; and the same 
shall be done with the water-banks that have been 
fenced in by us in our time. 

48. All evil customs concerning forests, warrens, 
foresters, and warreners, sheriffs and their officers, 
water-banks and their keepers, shall forthwith be in- 
quired into in each county, by twelve sworn knights 
of the same county chosen by creditable persons 
of the same county ; and within forty days after 
the said inquest be utterly abolished, so as never to 
be restored: so as we are first acquainted there- 
with, or our justiciary, if we should not be in 
England. 

49. We will immediately give up all hostages and 
charters delivered unto us by oui- English subjects, 
as securities for their keeping the peace, and yield- 
ing us faithful service. 

50. We will entirely remove from their bailiwicks 
the relations of Gerard de Atheyes, so that for the 
future they shall have no bailiwick in England ; we 
will also remove Engelard de Cygony, Andrew, 
Peter, and Gyon, from the Chancery ; Gyon de 
Cygony, Geoffrey de Martyn, and his brothers; 



20 MAGNA CHART A [Ch. II 

Philip Mark, and his brothers, and his nephew, 
Geoffrey, and their whole retinue. 

51. As soon as peace is restored, we will send 
out of the kingdom all foreign knights, cross-bow- 
men, and stipendiaries, who are come with horses 
and arms to the molestation of our people. 

52. If any one has been dispossessed or de- 
prived by us, without the lawful judgment of his 
peers, of his lands, castles, liberties, or right, we will 
forthwith restore them to him ; and if any dispute 
arise upon this head, let the matter be decided by 
the five-and-twenty barons hereafter mentioned, for 
the preservation of the peace. And for all those 
things of which any person has, without the lawful 
judgment of his peers, been dispossessed or deprived, 
either by our father King Henry, or our brother King 
Richard, and which we have in our hands, or are 
possessed by others, and we are bound to warrant 
and make good, we shall have a respite till the term 
usuall}^ allowed the crusaders ; excepting those things 
about which there is a {)lea depending, or whereof an 
inquest hath been made, by our order before we un- 
dertook the crusade ; but as soon as we return from 
our expedition, or if perchance we tarry at home 
and do not make our expedition, we will immedi- 
ately cause full justice to be administered therein. 

53. The same respite we shall have, and in the 
same manner, about administering justice, dis- 
afforesting or letting continue the forests, which 
Henry our father, and our brother Richard, have 
afforested ; and the same concerning the wardship 
of the lands which are in another's fee, but the 
wardship of which we have hitherto had, by reason 
of a fee held of us by knight's service ; and for the 
abbeys founded in other fee than our own, in which 
the lord of the fee says he has a right ; and when we 
return from our expedition, or if we tarry at home, 
and do not make our expedition, we will immediately 
do full justice to all the complainants in this behalf. 



1215] TEXT 21 

54. No man shall be taken or imprisoned upon 
the appeal of a woman, for the death of any other 
than her husband. 

55. All unjust and illegal fines made by us, and 
all amerciaments imposed unjustly and contrary to 
the law of the land, shall be entirely given up, or 
else be left to the decision of the five-and-twenty 
barons hereafter mentioned for the preservation of 
the peace, or of the major part of them, together 
with the aforesaid Stephen, Archbishop of Canter- 
bury, if he can be present, and others whom he 
shall think fit to invite ; and if he cannot be present, 
the business shall notwithstanding go on without 
him; but so that if one or more of the aforesaid 
five-and-twenty barons be plaintiffs in the same 
cause, they shall be set aside as to what concerns 
this particular affair, and others be chosen in their 
room, out of the said five-and-twenty, and sworn 
by the rest to decide the matter. 

56. If we have disseised or dispossessed the 
Welsh of any lands, liberties, or other things, with- 
out the legal judgment of their peers, either in Eng- 
land or in Wales, they shall be immediately restored 
to them ; and if any dispute arise upon this head, 
the matter shall be determined in the Marches by 
the judgment of their peers ; for tenements in Eng- 
land according to the law of England, for tenements 
in Wales according to the law of Wales, for tene- 
ments of the Marches according to the law of the 
Marches : the same shall the Welsh do to us and our 
subjects. 

57. As for all those things of which a Welshman 
hath, without the lawful judgment of his peers, 
been disseised or deprived of by King Henry our 
father, or our brother King Richard, and which we 
either have in our hands or others are possessed of, 
and we are obliged to warrant it, we shall have a 
respite till the time generally allowed the crusaders; 
excepting those things about which a suit is de- 



22 MAGNA CHARTA [Ch. II 

pending, or whereof an inquest has been made by 
our order, before we undertook the crusade : but 
when we return, or if we stay at home without per- 
forming our expedition, we will immediately do 
them full justice, according to the laws of the Welsh 
and of the parts before mentioned- 

58. We will without delay dismiss the son of 
Llewellin, and all the Welsh hostages, and release 
them from the engagements they have entered into 
with us for the preservation of the peace. 

59. We will treat with Alexander, King of Scots, 
concerning the restoring his sisters and hostages, 
and his right and liberties, in the same form and 
manner as we shall do to the rest of our barons of 
England; unless by the charters which we have 
from his father, William, late King of Scots, it 
ought to be otherwise ; and this shall be left to the 
determination of his peers in our court. 

There was a 60. All the aforesaid customs and liberties, which 

close union ^q ]^tx\e granted to be holden in our kingdom, as 
between bar- , •? i i . n i i? ^•^ 

onao-e and much as it belongs to us, all people or our kingdom, 

citizens from as well clero-y as laity, shall observe, as far as they 

1213 to 1217. ^i . V ^i • 1 1 + 

are concerned, towards their dependents. 

61. And whereas, for the honour of God and 
the amendment of our kingdom, and for the better 
quieting the discord that has arisen between us and 
our barons, we have granted all these things afore- 
said ; willing to render them firm and lasting, we 
do give and grant our subjects the underwritten 
security, namely, that the barons may choose five- 
and-twenty barons of the kingdom, whom they think 
The imme- convenient ; who shall take care, with all their 
diate abuses might, to hold and observe, and cause to be ob- 

W6r6 G3<SllV 

swept away, served, the peace and liberties we have granted 
the hostages them, and by this our present Charter confirmed in 
their homes ^^^^ manner ; that is to say, that if we, our justici- 
the foreign- ary, our bailiffs, or any of our officers, shall in any 
ers banished circumstance have failed in the performance of them 
country. But towards any person, or shall have broken through 



1215] TEXT 23 

any of these articles of peace and security, and the it was less 
offence be notified to four barons chosen out of the ^ije means' 
five-and-twenty before mentioned, the said four for the con- 
barons shall repair to us, or our iusticiary, if we *^?^ ^* * 'King 

^ ' . , . whom no 

are out of the realm, and, laying open the grievance, man could 

shall petition to have it redressed without delay : and trust. 

• GrrGGii s iSJiort 

if it be not redressed by us, or if we should chance History 129. 

to be out of the realm, if it should not be redressed 
by our justiciary within forty days, reckoning from 
the time it has been notified to us, or to our jus- 
ticiary (if we should be out of the realm), the four 
barons aforesaid shall lay the cause before the rest 
of the five-and-twenty barons ; and the said five- 
and-twenty barons, together with the community of 
the whole kingdom, shall distrain and distress us in 
all the waj^s in which they shall be able, by seizing 
our castles, lands, possessions, and in any other 
manner they can, till the grievance is redressed, 
according to their pleasure ; saving harmless our 
own person, and the persons of our Queen and chil- 
dren ; and when it is redressed, they shall behave 
to us as before. And any person whatsoever in the 
kingdom may swear that he will obey the orders of 
the five-and-twenty barons aforesaid in the execu- 
tion of the premises, and will distress us, jointly 
with them, to the utmost of his power ; and we give 
public and free liberty to any one that shall please 
to swear to this, and never will hinder any person 
from taking the same oath. 

62. As for all those of our subjects who will not, 
of their own accord, swear to join the five-and- 
twenty barons in distraining and distressing us, we 
will issue orders to make them take the same oath 
as aforesaid. And if anyone of the five-and-twenty 
barons dies, or goes out of the kingdom, or is hin- 
dered any other way from carrying the things afore- 
said into execution, the rest of the said five-and- 
twenty barons may choose another in his room, at their 
discretion, who shall be sworn in like manner as the 



24 MAGNA CHART A [Ch. II 

rest. In all things that are committed to the execu- 
tion of these five-ancl-twenty barons, if, when they 
are all assembled together, they should happen to 
disagree about any matter, and some of them, when 
summoned, will not or cannot come, whatever is 
agreed upon, or enjoined, by the major part of 
those that are present shall be reputed as firm and 
valid as if all the five-and-twenty had given their 
consent; and the aforesaid five-and-twenty shall 
swear that all the premises they shall faithfully ob- 
serve, and cause with all their power to be observed. 
And we will procure nothing from any one, by our- 
selves nor by another, whereby any of these con- 
cessions and liberties may be revoked or lessened ; 
and if any such thing shall have been obtained, let 
it be null and void ; neither will we ever make use 
of it either by ourselves or any other. And all the 
ill-will, indignations, and rancours that have arisen 
between us and our subjects, of the clergy and laity, 
from the first breaking out of the dissensions be- 
tween us, we do fully remit and forgive : moreover, 
all trespasses occasioned by the said dissensions, 
from Easter in the sixteenth year of our reign till 
the restoration of peace and tranquillity, we hereby 
entirely remit to all, both clergy and laity, and as 
far as in us lies do fully forgive. We have, more- 
over, caused to be made for them the letters patent 
testimonial of Stephen, Lord Archbishop of Canter- 
bury, Henry, Lord Archbishop of Dublin, and the 
bishops aforesaid, as also of Master Pandulph, for 
the security and concessions aforesaid. 

63. Wherefore we will and firmly enjoin, that the 
Church of England be free, and that all men in our 
kingdom have and hold all the aforesaid liberties, 
rights, and concessions, truly and peaceably, freely 
and quietly, fully and wholly to themselves and their 
heirs, of us and our heirs, in all things and places, 
for ever, as is aforesaid. It is also sworn, as well 
on our part as on the part of the barons, that all 



1235] CONTEMPORARY EXPOSITION 25 

the things aforesaid shall be observed in good faith, 
and without evil subtilty. Given under our hand, 
in the presence of the witnesses above named, and 
many others, in the meadow called Runingmede, be- 
tween Windsor and Staines, the 15th day of June, 
in the 17th year of our reign. 



CONTEMPORARY EXPOSITION 

ROGER OF WENDOVER (1235) 

A. D. 1215, which was the seventeenth year of the reign 
of King John ; he held his court at Winchester at Christmas 
for one day, after which he hurried to London, and took up 
his abode at the New Temple, and at that place the above- 
mentioned nobles came to him in gay military array, and 
demanded the confirmation of the liberties and laws of King 
Edward (the Confessor), with other liberties granted to them 
and to the kingdom and church of England, as were contained 
in the charter, and above mentioned laws of Henry the First ; 
they also asserted that, at the time of his absolution at Win- 
chester, he had promised to restore those laws and ancient 
liberties, and was bound by his own oath to observe them. The 
king, hearing the bold tone of the barons in making this 
demand, much feared an attack from them, as he saw that 
they were prepared to battle ; he, however, made answer that 
their demands were a matter of importance and difficulty, and 
he therefore asked a truce till the end of Easter, that he might, 
after due deliberation, be able to satisfy them as well as the 
dignity of his crown. . . . 

The barons then delivered to the messengers a paper, con- 
taining in great measure the laws and ancient customs of the 
kingdom, and declared that, unless the king immediately granted 
them and confirmed them under his own seal, they would, by 
taking possession of his fortresses, force him to give them 
sufficient satisfaction as to their before-named demands. The 
archbishop with his fellow-messengers then carried the paper 
to the king, and read to him the heads of the paper one by one 
throughout. The king, when he heard the purport of these 
heads, derisively said, with the greatest indignation, "Why, 



26 MAGNA CHATiTA [Ch. H 

amongst these unjust demands, did not the barons ask for my 
kingdom also ? Their demands are vain and visionary, and 
are unsupported by any plea of reason whatever." And at 
length he angrily declared with an oath, that he would never 
grant them such liberties as would render him their slave. 
The principal of these laws and liberties, which the nobles 
required to be confirmed to them, are partly described above 
in the charter of King Henry, and partly are extracted from 
the old laws of King Edward, as the following history will 
show in due time. . . . 

King John, when he saw that he was deserted by almost all, 
so that out of his regal superabundance of followers he scarcely 
retained seven knights, was much alarmed lest the barons 
would attack his castles and reduce them without difficulty, as 
they would find no obstacle to their doing so ; and he deceit- 
fully pi^ tended to make peace for a time with the aforesaid 
barons, and sent William Marshal, earl of Pembroke, with 
other trustworthy messengers, to them, and told them that, 
for the sake of peace, and for the exaltation and honour of the 
kingdom, he would willingly grant them the laws and liberties 
they required ; he also sent word to the barons by these same 
messengers, to appoint a fitting day and place to meet and 
carry all these matters into effect. The king's messengers 
then came in all haste to London, and without deceit reported 
to the barons all that had been deceitfully imposed on them ; 
they in their great joy appointed the 15th of June for the king to 
meet them, at a field lying between Staines and Windsor. 
Accordingly, at the time and place pre-agreed on, the king aij^d 
nobles came to the appointed conference, and when each party 
had stationed themselves apart from the other, they began a long 
discussion about terms of peace and the aforesaid liberties. . . . 

At length, after various points on both sides had been dis- 
cussed, King John, seeing that he was inferior in strength to 
the barons, without raising any difficulty, granted the under- 
written laws and liberties, and confirmed them by his charter 
as follows. 

KoGEB Wendovee, Flowers of History (Giles's translation, 1849). II. 304. 



1628-1832] CRITICAL COMMENT 27 

CRITICAL COMMENT 

COKE (1628). 

This parliamentary charter hath divers appellations in law. 
It is calied Magna Charta, not for the length or largeness of 
it .... but it is called the Great Charter, in respect of 
the great weightiness and weighty greatness of the matter 
contained in it in few words, being the fountain of all funda- 
mental law ; and therefore it may truly be said of it, that it is 
magnum in parvo. 

Sir Edwakd Coke, First Institute of the Laws of England. I. 22. 
BURKE (1774) 

Magna Charta, if it did not give us originally the House of 
Commons, gave us at least a^^House of Commons of weight and 
consequence. 

Edmi^nd Bueke, Works. II. 53. 

HALLAM (1S18) 

As this was the first effort towards a legal government, so 
is it bej'ond comparison the most important event in our 
history, except that revolution without which its benefits would 
rapidly have been annihilated. ... It (the Great Charter) is 
still the keystone of English liberty. All that has since been 
obtained is little more than as confirmation or commentary. . . . 
The essential clauses of Magna Charta are those which protect 
the personal liberty and property of all freemen l^y giving 
security from arbitrary imprisonment and arbitrary spolia- 
tion. . . . From this era a new soul was infused into the 
people of England. Her liberties at the best long in abeyance, 
became a tangible possession, and those indefinite aspirations 
for the laws of Edward the Confessor, were changed into a 
stead}' regard for the Great Charter. 

Henky Hallam, Europe during the Middle Ages. Chap. VIII. 341-342. 
PALGRAVE (1832) 

By far the greatest portions of the written or statute laws of 
England consist of the declaration, the reassertion, repetition, 



28 MAGNA CHART A [Ch. n 

or the re-enactment of some older law or laws, either customary 
or written, with addition or modifications. The new building 
has been raised upon the old ground- work : the institutions of 
one age have always been modelled and formed from those of 
the preceding, and their lineal descent has never been inter- 
rupted or disturbed. 

SiK James Palgkavb, English Commonwealth. I. 6. 

MACKINTOSH (1832) 

Whoever in any future age or yet unborn nation may ad- 
mire the felicity of the expedient which converted the power 
of taxation into the shield of liberty, by which discretionary 
and secret imprisonment was rendered impracticable, and por- 
tions of the people were trained to exercise a larger share of 
judicial power than ever was allotted to them in any other 
civilized State, in such a manner as to secure, instead of en- 
dangering, public tranquillity ; whoever exults at the spectacle 
of enlightened and independent assemblies, which, under the 
eye of a well informed nation, discuss and determine the laws 
and policy likely to make communities great and happy ; who- 
ever is capable of comprehending all the effects of such in- 
stitutions with all their possible improvements upon the mind 
and genius of a people, — is sacredly bound to speak with 
reverential gratitude of the authors of the Great Charter. To 
have produced it, to have preserved it, to have matured it, 
constitute the immortal claim of England upon the esteem of 
mankind. Her Bacons and Shakespeares, her Miltons and 
Newtons, with all the truth which they have revealed, and all 
the generous virtue which they have inspired, are of inferior 
value when compared with the subjection of men and their 
rulers to the principles of justice, if, indeed, it be not more 
true that these mighty spirits could not have been formed ex- 
cept under equal laws, nor roused to full activity without the 
influence of that spirit which the Great Charter breathed over 
their forefathers. 

Sir James Mackintosh, History of England. I. 221. 



1628-1895] CRITICAL COMMENT 29 

STUBBS (1873) 

The Great Charter closes one epoch and begins another. 
On the one hand it is the united act of a nation that has been 
learning union; the enunciation of rights and liberties, the 
needs and uses of which have been taught by long years of 
training and by a short but bitter struggle : on the other hand 
it is the watchword of a new political party, the starting-point 
of a new contest. 

William Stubbs, Constitutional History of England. II. 1. 

J. R. GREEN (1874) 

An island in the Thames between Staines and Windsor had 
been chosen as the place of conference : the King encamped on 
one bank, while the barons covered the marshy flat, still known 
by the name of Runnymede, on the other. Their delegates met 
in the island between them, but the negotiations were a mere 
cloak to cover John's purpose of unconditional submission. 
The Great Charter was discussed, agreed to, and signed in a 
single day. One copy of it still remains in the British Museum, 
injured by age and fire, but with the royal seal still hanging 
from the brown, shrivelled parchment. It is impossible to gaze 
without reverence on the earliest monument of English freedom 
which we can see with our own eyes and touch with our own 
hands, the great Charter to which from age to age patriots have 
looked back as the basis of English liberty. But in itself the 
Charter was no novelty, nor did it claim to establish any new 
constitutional principles. The Charter of Henry the First 
formed the basis of the whole, and the additions to it are for 
the most part formal recognitions of the judicial and adminis- 
trative changes introduced by Henry the Second. But the 
vague expressions of the older charters were now exchanged 
for precise and elaborate provisions. The bonds of unwritten 
custom which the older grants did little more than recognize 
had proved too weak to hold the Angevins ; and the baronage 
now threw them aside for the restraints of written law. It is 
in this way that the Great Charter marks the transition from 
the age of traditional rights, preserved in the nation's memory 
and officially declared by the Primate, to the age of written 



30 MAGNA CHART A [Ch. II 

legislation, of Parliaments and Statutes, which was soon to 
come. The Church had shown its power of self-defence in the 
struggle over the interdict, and the clause which recognized its 
rights alone retained the older and general form. But all 
vagueness ceases when the Charter passes on to deal with the 
rights of Englishmen at large, their right to justice, to security 
of person and property, to good government. " No freeman," 
ran the memorable article that lies at the base of our whole 
judicial system, " shall be seized or imprisoned, or dispossessed, 
or outlawed, or in any way brought to ruin : we will not go 
against any man nor send against him, save by legal judgment 
of his peers or by the law of the land." "To no man will we 
sell," runs another, " or deny, or delay, right or justice." The 
great reforms of the past reigns were now formally recognized ; 
judges of assize were to hold their circuits four times in the 
year, and the King's Court was no longer to follow the 
King in his wanderings over the realm, but to sit in a fixed 
place. But the denial of justice under John was a small danger 
compared with the lawless exactions both of himself and his 
predecessor. Richard had increased the amount of the scutage 
which Henry II. had introduced, and applied it to raise funds 
for his ransom. He had restored the Danegeld, or land tax, so 
often abolished, under the new name of " carucage," had seized 
the wool of the Cistercians and the plate of the churches, and 
rated moveables as well as land. John had again raised the 
rate of scutage, and imposed aids, fines, and ransoms at his 
pleasure without counsel of the baronage. The Great Charter 
met this abuse by the provision on which our constitutional 
system rests. With the exception of the three customary 
feudal aids which still remained to the Crown, " no scutage or 
aid shall be imposed in our realm save by the Common Council 
of the realm ; " and to this Great Council it was provided that 
prelates and the greater barons should be summoned by special 
writ, and all tenants in chief through the sheriffs and bailiffs, 
at least forty days before. . . . But it was less easy to provide 
means for the control of a King whom no man could trust, and 
a council of twenty-five barons was chosen from the general 
body of their order to enforce on John the observance of the 
Charter, with the right of declaring war on the King should its 



1628-1895] CRITICAL COMMENT 31 

provisions be infringed. Finally, the Charter was published 
throughout the whole country, and sworn to at every hundred- 
mote and town=mote by order from the King. 

J. E. Gkeen, Short History of the English People. 128-130. 

BAGEHOT (1872) 

Many most important enactments of that period (and the 
fact is most characteristic) are declaratory acts. They do not 
profess to enjoin by inherent authority what the law shall in 
future be, but to state and mark what the law is ; they are 
declarations of immemorial custom, not precepts of new duties. 
Even in the "Great Charter" the notion of new enactments was 
secondary, it was a great mixture of old and new ; it was a 
sort of compact defining what was doubtful in floating custom. 
Walter Bagehot, English Constitution. 280. 

TASWELL-LANGMEAD (1879) 

Three great political documents, in the nature of funda- 
mental compacts between the Crown and the Nation, stand out 
as prominent landmarks in English Constitutional history. 
Magna Charta, the Petition of Right, and the Bill of Rights 
constitute, in the words of Lord Chatham, " the Bible of the 
English Constitution." In each of these documents whether it 
be of the 13th or of the 17th century is observable the common 
characteristic of professing to introduce nothing new. Each 
professed to assert rights and liberties which were already old, 
and sought to redress grievances which were for the most part 
themselves innovations upon the ancient liberties of the people. 
In its practical combination of conservative instincts with 
liberal aspirations, in its power of progressive development and 
self-adaptation to the changing political and social wants of each 
successive generation, have always lain the peculiar excel- 
lence and at the same time the surest safeguard, of our 
Constitution. 

The Great Charter of Liberties was the outcome of a move- 
ment of all the freemen of the realm, led by their natural leaders, 
the barons. Far from being a ' mere piece of class legislation,' 
extorted by the barons alone for their own special interests, it 



32 MAGNA CHART A [Ch. II 

is in itself a noble and remarkable proof of the sympathy and 
union then existing between the aristocracy and all classes of 
the commonalty. 

J. P. Taswell-Langmead, English Constitutional History. 85. 

RUDOLF VON GNEIST (1889) 

This charter of liberties differed from those prevalent on the 
continent, especially in the fact that the Prelates and vassals 
do not think of themselves alone, but also extend the necessary 
securities to the classes below them. . . . Magna Charta was 
a pledge of reconciliation between all classes. Its existence 
and ratification maintained, for centuries, the notion of funda- 
mental rights as applicable to all classes, in the consciousness 
that no liberties could be upheld by the superior classes for any 
length of time, without guarantees of personal liberty for the 
humbler also. 

Rudolf von Gjsteist, History of the English Parliament, translated by 
A. H. Keane. 29-103. 

POLLOCK AND MAITLAND (1895) 

Every one of its brief sentences is aimed at some different 
object and is fuU of future law. 

Pollock and Maitland, History of English Law. I. 150. 
GARDINER (1895) 

It was a good security if it could be maintained. ... So 
little was John trusted that it was thought necessary ... to 
establish a body of twenty-five, — twenty-four barons and the 
Mayor of London, — which was to guard against any attempt 
of the king to break his word. ... In other words, there was 
to be a permanent organization for making war upon the king. 

Gardiner, Student's History of England. 183. 
RANSOME (1895) 

One of the best features of the charter was the way in which 
every right granted to a baron was carefully extended to include 
the case of the simple freeman. . . . These provisions and many 



1628-1895] CRITICAL COMMENT 33 

others which concerned every class of the population form the 
substance of the Great Charter, which has ever since been 
regarded by Englishmen as the foundation of their liberties. 
In later times it took the position in popular esteem which had 
hitherto been held by the " laws of Henry I.," or the " laws of 
King Edward," and has been confirmed over and over again. 

Cyril Ransome, Advanced History of England. 176-177. 



34 THE SUMMONS TO PARLIAMENT [Ch. Ill 



Chapter III 
THE SUMMONS TO PARLIAMENT (1295) 

SUGGESTIONS 

The importance of the " Summons " is chiefly prospective. It takes 
a place among documents more famous because it is typical of a large 
class of constitutional services. 

This summons, together with similar writs, was issued by order of 
the Crown. The king had found himself early in 1295 in very diffi- 
cult circumstances. In June he issued writs of summons to the mem- 
bers of Parliament to meet at Westminster in August ; this meeting 
lasted but two days, and as no representative of the Commons was 
summoned to this assembly, it is more properly styled a session of a 
Great Council. No attempt was made in it to raise money, but it 
was probably arranged that a grant should be asked for in the next 
session. With this in view, writs were issued on the 30th of Septem- 
ber to the Ecclesiastical representatives. On the 1st of October, the 
writs were issued to the baronage. On the 3rd of October the writs 
to the sheriffs are dated ; and by these each sheriff is directed to 
return two knights elected by the counties, and two citizens or 
burghers for each city or borough within his shire. 

By such writs of summons a perfect representation of the three 
estates was secured, and a parliament constituted, on the model of 
which every succeeding assembly bearing that name was formed. 

One may well pause at this point to look back upon the Witenage- 
mot of the Teutonic system of government and look forward to the 
assembly body of the Congress of the United States. 

For Outlines and Material, see Appendix A. 

DOCUMENT 
Summons to Parliament (Oct. 3rd, 1295) 

Report on The King to the Sheriff of Northamptonshire : 

the Dignity Whereas, in order to make provision of remedies 

App. i^P- 66, against the dangers which at this time menace the 
translated realm, we desire to take counsel with the earls, 



1523-1536] CONTEMPORARY EXPOSITION 35 

barons, and other noblemen of our kingdom, and by Henry A. 
for that reason have commanded them to meet us ^^^ ^ / 
on the Sunday next after the feast of Saint Martin ference be- " 
in the winter next ensuing, at Westminster, for the tween this 
discussing, ordaining and doing of whatsoever may summons 
be best for the obviating of such dangers, ter of Henry 

We do hereby firmly command and enjoin you ^- ^'^^'*'- ^■ 
that there be chosen without delay from the afore- ]Srote Magna 
said county two knights, and from every city of Charta, Art. 
that county two citizens, from every borough two 
burgesses, all men of superior discretion and ability 
in affairs, and that you have them come to us at 
the day and place aforesaid ; 

In order that said knights shall have, in behalf 
of themselves and the body of the county aforesaid, 
full and sufficient power, and that said citizens and 
burgesses shall have, in behalf of themselves and 
the body of the cities and boroughs aforesaid both Note the in- 
separately and collectively, full and suffl^cieut power, *^rease of 
for doing what shall then be ordained by the com- House of 
mon counsel in the premises ; so, that the business t:ommons. 
aforesaid shall in no wise remain unaccomplished 
for want of such power. 

And have you there the names of the knights, 
citizens, and burgesses, and this writ. 

Witness the King at Canterbury the third day of 
October. 



CONTEMPORARY EXPOSITION 

THOMAS OROMWELIi (1523) 

Maister Creke, as hertelye as I can T commende me and in 
the same wise thanke you (for youi*) gentill and louyng letter es 
to me at sundrye tymys sent, and when as I accordinglye haue 
not in lykewise remembrid and rescribid it hath been For that 
I haue not hade anything to wryt of to your aduauncement. 
Whom I assure you yf it were in my lyttyl power I coulde be 
well contentyd to preferre as ferre as any one inan lyuyng. 
But at this present I being at sum layser entending to re- 



36 THE SUMMONS TO PARLIAMENT [Ch. Ill 

membre and also remanerate the olde acquayntaunces and to 
renew oicr not forgoten sundrye communycacions supposing ye 
desyre to know the neives curraunt in thes partyes for it is said 
that newes refresshith the spy(rit) of lyfe, wherfor ye shall 
onderstonde that bw long tyme I amongst other haue Indured 
a parlyauient which contenwid by the space of xvij hole toekks 
wher we communyd of warre pease stryfle contencyon debatte 
murmure grudge Riches pouerte penwrre trowth falshode Jus- 
tyce equyte discayte opprescyon Magnanymte act yuyte force 
attem praunce Treason murder Felonye consyli . . . and also 
how a commune welth myght be edify ed and a(lso) contenwid 
within our Realme. Howbeyt, in conclusyon, we haue d(one) 
as our predecessors haue been wont to doo, that ys to say, as 
well as we myght and lefte wher we begann. Ye shall also 
onderstond the Duke of Suthfolke Furnysshyd with a gret 
armye goyth ouer in all goodbye haste (whit)her I know not," 
when I know I shall aduertyse yow. Whe haue in our parlya- 
ment grantyd onto the Kinges highness a ryght large subsyde, 
the lyke wherof was neur grantyd in this realme. All your 
frendes to my knowlage be in good helth and specially they 
that ye wott of : ye know what I meaoe. I thinke it best to 
wryt in parables becaus(e) I am in doubt. Maister Vawhan 
Fareth well and so doth Maister Munkeaste(r). Maister 
Wood all is merye withowt a wyffe and commeyidyth hym to you: 
and so ys also Nycholas Longmede which hath payd William 
Wilfforde. And thus as well f(are) ye as I woolde myself at 
London the xvij daye of August by your Frende to all his 
possible powei-. 

Thomas Crumwell. 

Add: To his (esp)ecial and entyrelye belouyd frende John 
Creke be this youyn Bylbowe in Biscay e. 

Ralph C. Merrill, Life of Thomas Cromwell (MS.), in the College 
Office of Harvard University. 

the coppy of the Kynges letter 

In my herty wyse I recomendeme unto you these shalbe for- 

asmoche as the Kynges plesur and comandement ys that Robert 

Derknall and John Bryges schulbe electe and chosyn Citezin 

or burgesses for that cite by reson wherof my lorde chaun- 



1523-1536] CRITICAL COMMENT 37 

celer and I by owyr letteres written onto you aduertysed you 
therof and ye the same little or nothynge regardynge but 
ratther contemny haue closen othj'r at your owne wylles and 
comandement in that behalfe wherat the kynges highnes dothe 
not a lytell marvell wherefore in advoydyng of ferther dys- 
plesur, that mygte therby ensue I require you on the kynges 
behalfe that notwythstondynge seyd eleceion ye procede to a 
new and electe thosse other, accordynge to the tenure of the 
former letteres to you dyrectyd for that purpose tvitJiout faylyng 
so to do as the kynges truste and expecion is in you and as 
ye entende to avoide hys highness displesur at your parell and 
yf any persone wyll obstynately gaynsay the same I require 
you to aduertise me therof that I maye ordre hym as the 
Jcynges plesur shalbe in that case to commands thus fare ye 
well at the rolles the viii f day of May. 

Your louynge frende, 

Thomas Crumwell. 

Add. : To my ryzth louynge frendes the mayr sheeyffe and 
cominaltie of the Cite of Cannterhury and to euery of them. 

[This official letter was written by Thomas Cromwell to the 
"Magistrates" (i. e. , Town Council) of Canterbury, May 18, 
1536. It is in the MS. Life of Cromwell, cited above.] 



CRITICAL COMMENT 

HALLAM (1818) 

To grant money was therefore the mai^ object of their meet- 
ing ; and if the exigencies of the administration could have been 
relieved without subsidies, the citizens and burgesses might 
still have sat at home, and obeyed the laws which a council 
of prelates and barons enacted for their government. But it 
is a difficult question, whether the king and the peers designed 
to make room for them, as it were, in legislation ; and whether 
the power of the purse drew after it immediately, or only by 
degrees, those indispensable rights of consenting to laws which 

they now possess. 

Henry Hai.lam, Middle Ages. 370. 

t Altered to this from " xx." 



38 THE SUMMONS TO PARLIAMENT [Ch, III 

STUBBS (1873) 

The design, as interpreted by the result, was the creation 
of a national parliament, composed of the three estates, organ- 
ized on the principle of concentrating local agency and ma- 
chinery in such a manner as to produce unity of national action, 
and thus to strengthen the hand of the king, who personified 
the nation. This design was perfected in 1295. It was not 
the result of compulsion, but the consummation of a growing 
policy. Edward did not call his parliament ... on the spur 
of a momentary necessity, or as a new machinery invented for 
the occasion and to be thrown aside when the occasion was 
over, but as a perfected organization, the growth of which he 
had for twenty years been doing his best to guide. 

William Stubes, Constitutional History of England. II. 305. 

TASWELL-LANGMEAD (1879) 

From 1265 to 1295 was a transitionary period : and it is 
only from the latter year that we can date the regular and 
complete establishment of a perfect representation of the Three 
Estates in Parliament. . . . The position of the kingdom was 
still critical, and Edward seems to have felt that he required 
to be backed up by the whole nation, supporting him as well 
by their common counsel and approval as by a general and 
adequate grant of an aid. He accordingly, on the 30th of 
September, summoned a parliament to meet at "Westminster 
in the November following, so constituted as to represent and 
have the power to tax the whole nation. 

T. P. Taswell-Langmead, English Constitutional History. 200-207. 

J. K. HOSMEE (1890) 

It was in the autumn of 1295 that he (Edward I.) performed 
his most memorable act, the last formal step which established 
fully the representation of the Commons. . . . The forward 
steps which the nation took, sometimes, to be sure, in spite of 
him, but sometimes under his guidance, were most momentous. 
The Great Charter was again and again confirmed, until it 
became as fixed as the hills, in the national life. ... In 1297, 
it was clearly established that there can be no taxation without 



1818-1900] CRITICAL COMMENT 39 

representation, — a principle upon which, five hundred years 

later, stood the Americans of '76. . . . Parliament, too, stood 

forth, a well defined and organized expositor of the national will. 

J. K. HosMER, Anglo-Saxon Freedom. 60, 61. 

BOUTMT (1S91) 

In 1295, the custom of summoning two knights from each 
county had become fixed. . . . From that time forward no 
Parliament was formally constituted without a summons ad- 
dressed to each of these two classes. During the same period 
another element had been admitted to the assembly. The 
principal towns, those especially which possessed charters, 
had been convoked in 1265 by Simon de Montfort; thirty 
years later a royal ordinance called upon them to send two 
inhabitants, citizens, or burgesses, as representatives, and after 
that year they received regularly a summons to Parliament. 
The year 1295 is therefore a date of capital importance. The 
beginning of the fourteenth century found Parliament consist- 
ing of all the essentials of a truly national assembly, and 
representing even more completely than at the present day 
(for certain elements have been lost by exclusion or disuse) 
the various components of the English nation. 

ifciiiLE BouTMT, English Constitution. 65, 66. 

FREEMAN (1892) 

One may certainly doubt whether Edward, when he sum- 
moned a baron to Parliament, meant positively to pledge 
himself to summon that baron's heirs for ever and ever or 
even necessarily to summon the baron himself to every future 
parliament. The facts are the other way : the summons still 
for a while remains irregular. But the perpetual summons, 
the hereditary summons, gradually became the rule, and that 
rule may in a certain sense be said to date from 1295, the 
year from which so many things parliamentary date. 

Edwd. Freeman, House of Lords, in Fourth Series of Historical Essays. 454. 

RANSOME (1895) 

In this assembly were represented each of what were be- 
ginning to be known as the three estates of the realm, the 



40 THE SUMMONS TO PARLIAMENT [Ch. Ill 

clergy, the nobility, and the commonalty. . . . Thirty years 
had elapsed since the citizens and burgesses had been called 
to Simon de Montfort's convention in 1265. Since then it 
had been no uncommon thing to summon knights and burgesses 
to parliament, but the exact constitution of the assembly was 
by no means definitely settled. . . . This is, therefore, the first 
real parliament in which thejj^ had ever taken part. . . . The 
meeting of the Model Parliament of 1295 was a memorable day 
for England, and marks the beginning of a new era of parlia- 
mentary government. 

Cyril Ransome, Advanced History of England. 219, 220, 

S. R. GARDINER (1895) 

Edward, attacked on two sides, threw himself for support on 
the English nation. Towards the end of 1295 he summoned a 
Parliament which was In most respects the model for all suc- 
ceeding Parliaments. It was attended not only by bishops, 
abbots, earls, and barons, by two knights from every shire, 
and two burgesses from every borough, but also by representa- 
tives of the chapters of cathedrals and of the parochial clergy. 

S. R. Gardiner, Student's History of England. 218. 
G. B. ADAMS (1900) 

If the burgesses were certain to be admitted into the older 
institution there was nothing in that fact or in any other circum- 
stance of the time that determined the form and character 
which the new institution was to assume, and this was a ques- 
tion of vital importance for the future. Upon it depended the 
existence of the constitution quite as much as upon the survival 
and the broadened significance of the ideas of the Magna 
Carta. In this particular the decisive period, the danger 
period, was that which extended from 1254 to 1295. We 
have a right, I think, to make 1295 the date of the beginning 
of Parliament. To be sure there was nothing whatever about 
the parliament of 1295 considered by itself alone which indi- 
cated that it was to be any more truly the model parliament 
than any one of the diffei'ent experimental forms of the pre- 
ceding forty years. It possessed more of the features of the 
curia regis than of a later parliament ; the whole question of 



1818-1900] CRITICAL COMMENT 41 

estates and of organization was still unsettled ; the struggle 
for the supremacy of the new parliament over the survivals of 
the old curia regis had still to be fought out in the following 
century, but as a historical fact the parliament of 1295 was the 
model parliament. The age of experimenting was over. In 
all the creative fundamental principles, both of constitution 
and of powers, Parliament was in existence as a different thing 
institutionally from the old curia regis. The later development 
was a perfection of details, au application of established prin- 
ciples to a constantly enlarging range of cases, not a work of 
new creation. 

Geo. B. Adams, Critical Periods of English constitutional History, in Ameri- 
can Historical Review (July, 1900). 656. 



42 CONFIRM A TIO CHARTARUM ' [Ch. IV 



Chapter IV 
CONFIRMATIO CHARTARUM (1297) 

SUGGESTIONS 

In events which led to this Charter we trace two distinct forces, each 
of them the result of accumulating influence, but timed by an extra- 
ordinary coincident, through the King's necessities, the treasury was 
utterly drained. King Edward, from sheer want, was driven to tyran- 
nous extortion, when planning his second attack on France with the 
aid of Flanders. The Church and Baronage alike defied him. Bohun, 
Earl of Hereford, and Bigod, Earl of Norfolk, headed the opposition. 
Edward found himself powerless to move, and in a burst of feeling 
owned that he had taken their substance without due warrant of law. 
Still in want of money, he appealed to the barons, but they in turn 
demanded redress of gi-ievances and the confirmation of Magna Charta. 
In August, Edward proceeded to Ghent, leaving his son, Edward, 
Prince of Wales, as Regent. As soon as the King had departed, the 
Earls seized the opportunity to press their demands. Entering the 
Exchequer, they peremptorily forbade the Barons there to levy the aid, 
the grant of which they asserted had been illegally obtained, until the 
charters had been confirmed. Supported by a large militai'y follow- 
ing, and backed up by the citizens of London, they were masters of 
the situation, and the young Prince and his Council found it necessary 
to yield. The Confirmatio Chartarum, which, although a statute, is 
drawn up in the form of a charter, was passed on the 10th of October, 
1297, in a Parliament at which knights of the shire attended as repre- 
sentatives of the Commons, as well as the lay and clerical Baronage. 
It was immediately sent over to King Edward at Ghent, and there 
confirmed by him on the 5th of November following. 

In Confirmatio Chartarum, as in Magna Charta, we find a culmina- 
tion of influences bringing about a document which has a vital place in 
the organization of all future government. Such charters are " the 
rallying-point of the oppressed and the offended," and no student of 
American liberty can appreciate intelligently the struggle from 1765 
to 1776 without an insight into the historic beginnings of " Taxation 
loitliout repi^esentation.'^ 

For Outlines and Material, see Appendix A. 



1297] TEXT 43 

DOCUMENT 
" Confirmatio Chartarum " of Edward I. (1297) 

I. Edward, by the grace of God, King of Eng- The Statutes 

land, Lord of Ireland, and Duke Guyan, to all those f^^ ^'^«''"' 

that these present letters shall hear or see, greeting, translated 

Know ye that we to the honour of God and of holy ^ William 

Church, and to the profit of our realm, have granted Select Char- 

for us and our heirs, that the Charter of Liberties iers, 486, 

487 
and the Charter of the Forest, which were made by 

common assent of all the realm, in the time of King 
Henry our father, shall be kept in every point with- 
out breach. And we will that the same charters 
shall be sent under our seal as well to our justices of The gist of 

the forest as to others, and to all sheriffs of shires, M^S°^ , 
' . Cliarta and 

and to all our other officers, and to all our cities of the Char- 

throuohout the realm, together with our writs in the t^r of the 

Forest ap- 
which it shall be contained, that they cause the pg^j-g ^^ ^his 

foresaid charters to be published, and to declare to article; by 
the people that we have confirmed them in all points, tije^p^rero'^a- 
and that our justices, sheriffs, mayors, and other tive of levy- 
ministers which under us have the laws of our land i^S internal 

taxes was 
to guide, shall allow the said charters pleaded before given up. 

them in judgment in all their points ; that is to 
wit, the Great Charter as the common law, and the 
Charter of the Forest according to the Assize of the 
Forest, for the wealth of our realm. 

II. And we will that if any judgment be given 
from henceforth, contrary to the points of the char- 
ters aforesaid, by the justices or by any other our The remedy- 
ministers that hold plea before them against the t^^ry iud"-- ' 
points of the charters, it shall be undone and holden ment lay in 
for nought. tlielawof 

° Art. 11. 

III. And we will that the same charters shall be 

sent under our seal to cathedral churches throughout 

our realm, there to remain, and shall be read before 

,1 T J. J.- -u U.1 Arts. iii. and 

the people two times by the year. i^ jjjj^jj ^j^g 

IV. And that all archbishops and bishops shall authority of 
pronounce the sentence of great excommunication Church. 



44 



CONFIRM ATIO CHARTARUM 



[Ch. IV 



Articles v., 
vi., and vii. 
contain the 
essence of 
the principle, 
" No taxa- 
tion without 
representa- 
tion." 



Beginning of 
a system by 
which taxes 
in foreign 



against all those that by word, deed,, or counsel do 
contrary to the foresaid charters, or that in any 
point break or undo them. And that the said curses 
be twice a year denounced and published by the 
prelates aforesaid. And if the prelates or any of 
them be remiss in the denunciation of the said sen- 
tences, the Archbishops of Canterbury and York 
for the time being, as is fitting, shall compel and 
distrein them to make that denunciation in form 
aforesaid. 

V. And for so much as divers people of our realm 
are in fear that the aids and tasks which they have 
given to us beforetime towards our wars and other 
business, of their own grant and goodwill, howso- 
ever they were made, might turn to a bondage to 
them and their heirs, because they might be at 
another time found in the rolls, and so likewise the 
prises taken throughout the realm by our ministers ; 
we have granted for us and our heirs, that we shall 
not draw such aids, tasks, nor prises into a custom, 
for anything that hath been done heretofore, or that 
may be found by roll or in any other manner. 

VI. Moreover we have granted for us and our 
heirs, as well to archbishops, bishops, abbots, priors, 
and other folk of holy Church, as also to earls, 
barons, and to all the commonalty of the land, that 
for no business from henceforth will we take such 
manner of aids, tasks, nor prises, but by the com- 
mon consent of the realm, and for the common profit 
thereof, saving the ancient aids and prises due and 
accustomed. 

VII. And for so much as the more part of the 
commonalty of the realm find themselves sore grieved 
with the maletote of wools, that is to wit, a toll of 
forty shillings for every sack of wool, and have made 
petition to us to release the same ; we, at their re- 
quests, have clearly released it, and have granted 
for us and our heirs that we shall not take such thing 
nor any other without their common assent and good 



1297] CRITICAL COMMENT 45 

will ; saving to us and our heirs the custom of wools, trade were 
skins, and leather granted before by the commonalty to^arlia- ^^*^ 
aforesaid. In witness of which things we have ment. 
caused these our letters to be made patents. Wit- 
ness Edward our son at London, the 10th day of 
October, the five and twentieth year of our reign. 

And be it remembered that this same charter, in 
the same terais, word for word, was sealed in Flan- 
ders under the king's great seal, that is to say, at 
Ghent, the 5th day of November in the 25th year of 
the reign of our aforesaid lord the king, and sent 
into England. 



CONTEMPORARY EXPOSITION 

BARTHOLOMEW DE COTTON (1297) 

His majesty the King conceded to all who owed him service 
and to all holders of twenty measures of land that they should 
not be held to go with him into Flanders except for the perform- 
ance of promises and of military service due said King. 

Bartholomew de Cotton, Historia Anglicana, translated by H. A. 
Clapp (1900). 327. 



CRITICAL COMMENT 
HALLAM (1818) 

That famous statute, inadequately denominated the confirma- 
tion of the charters, because it added another pillar to our 
Constitution, is not less important than the great charter itself. 
Hitherto the King's prerogative of levying money. . . . had 
passed unquestioned. Some impositions, that especially on the 
export of wool, affected all the King's subjects. It was now 
the moment to enfranchise the people, and give that security to 
private property which Magna Charta had given to personal 
liberty. 

Henkt Hallam, Middle Ages. 354. 



46 CONFIRMATIO CHARTARUM [Ch. IV 

MACAULAY (1849) 

That the King could not impose taxes without the consent 
of parliament is admitted to have been, from time immemorial, 
a fundamental law of England. It was among the articles 
which John was compelled by the Barons to sign. Edward I. 
ventured to break through the rule, but able, powerful, and 
popular as he was, he encountered an opposition to which he 
found it expedient to yield. He covenanted, accordingly in 
express terms, for himself and for his heirs, that they would 
never again levy any aid without the assent and good will of 
the estates of the realm. 

Mac AULA Y, History of England. I. 25. 

STUBBS (1873) 

The charters were confirmed by inspeximus on the 12th ; the 
King on the 5th of November at Ghent confirmed both the char- 
ters and the new articles. These articles are the summary of the 
advantages gained at the termination of the struggle of eighty- 
two years, and in words they amount to very little more than 
a reinsertion of the clauses omitted from the Great Charter of 
John. The " Confirmatio Cartarum " is one of the most curious 
phenomena of our national history, whether it be regarded as 
the result of an occasional crisis, or as the decision, no longer 
to be delayed, of a struggle of principles. . . . The forces 
which seized that opportunity were ready, and were the result 
of a long series of causes and the working of principles which 
must sooner or later have made an opportunity for themselves. 
Such a crisis, if they had separately attempted to bring it 
about, might have changed the dynasty, or subverted the 
relations of church and state, crown and parliament, but ac- 
cepted as it came, it brought about a result singularly in har- 
mony with what seems from history and experience to be the 
natural direction of English progress, 

William Stubbs, Constitutional History of England. II. 150, 151. 
TASWELL-LANGMEAD (1879) 

The " Confirmatio Chartarum," which, although a statute, is 
drawn up in the form of a charter, was passed on the 10th of 



1818-1889] CRITICAL COMMENT ■ 47 

October, 1297, in a Parliament at which Knights of the Shire 
attended as representatives of the Commons, as well as lay and 
clerical baronage. . . . The " Confirmatio Chartarum " was not 
merely a re-issue of Magna Charta and the Charter of the 
Forest, — but the enactment of a series of new provisions in- 
tended to deprive the Crown in the future of its assumed right 
of arbitrary taxation. . . . The exclusive right of Parliament 
to impose taxation, though often infringed by the illegal exer- 
cise of prerogative, became from this time an axiom of the 
Constitution. 

T. P. Taswell-Langmead, E'njrZi'sA Constitutional History. 216,217. 

FEILDEN (1882) 

The reign of Edward I. is marked by the admission of the 
Commons to Parliament, and by the partial surrender on the 
part of the Crown of its claims to arbitrary taxation. In 1297, 
Humphrey Bohun, Earl of Hereford, Roger Bigod, Earl of 
Norfolk, and Archbishop Winchelsey, representing baronial 
and clerical interests, extorted from Edward the Confirmatio 
Chartarum. 

H. St. C. Feilden, Slwrt Constitutional History of England. 18. 

RUDOLF VON GNBIST (1889) 

This Confirmatio Chartarum, in French and Latin text, 
represents, in fact, a fundamental law comparable with Magna 
Charta, and to the credit of the Crown in contrast with the 
events of 1215. . . . The main point . . . was that the right 
constantly contended for since Magna Charta in 1215 of signi- 
fying an assent to the taxes, had after a lapse of a century 
been at last achieved, and this on a broad footing of the land- 
owning classes, which in fact pay them. 

Rudolf von Gneist, History of the Eng. Parliament, translated by A. H. 
Keane. I. 159. 

HANNIS TAYLOR (1889) 

Not until eighty years after the issuance of the Great Charter 
did the nation finally win, through the Confirmatio Cartarum, 
a permanent constitutional guarantee that taxes should never 
be imposed by the unaided force of the royal authority. . . . 



48 CONFIRMATIO CHARTARUM [Ch. IV 

In the parliament of 1295 the three estates appeared in per- 
son or by representatives : the hiy and spiritual baronage repre- 
sented themselves, the inferior clergy and the commons, each 
as an estate of the realm, appeared through their chosen repre- 
sentatives. Two years after the national assembly was thus 
constituted, the long struggle of the nation for the right to tax 
itself was closed at the end of the " Barons' War " by the Con- 
firmatio Cartarum, wherein Edward I. was made to promise 
the clergy, the barons and " all the commonalty of the land, that 
for no business from henceforth will we take such manner of 
aids, tasks, nor prizes, but by the common assent of the realm, 
and for the common profit thereof, saving the ancient aids and 
prizes due and accustomed." 

Hannis Tatloe, Origin and Growth of the English Constitution. 11. 11-13. 



1429] LEGAL FORMS AND JURY TRIALS— TEXT 49 



Chapter V 
LEGAL FORMS AND JURY TRIALS (1429) 

SUGGESTIONS 

The Statute 8 Henry VI. 12 is chosen as the type of the many statutes 
enacted in the Lancastrian Period. Referred to by Sir John For- 
tescue (whose interpretation of the English laws of the fifteenth cen- 
tury forms a running commentary upon the government of his day) 
this statute seems particularly worthy of place amongst our docu- 
ments. This is the earliest mention, in a statute, of the system of 
trial by jury — "Inquest to be taken of lawful men." 

The system of judicature is too technical and too far-reaching to be 
developed as a correlation of constitutional government, but it is well 
to give a cursory glance at Curia Regis, the Laws of Henry II., and 
the growth of Trial by Jury, that the principle of " liberty of the 
subject " may here be shown to have a legal as well as a moral sup- 
port in the history of Anglo-Saxon government. 

Throughout the earlier study, suggested by the topics in the Appen- 
dix, the development of the court and trial by jury are constantly 
referred to as a basis for research. 

For Outlines and Material, see Appendix A. 

DOCUMENT 
Statutes: 8 Henry VI. Cap. 12 (1429) 

No Judgment or Record shall be reversed for any The Statutes 
Writ, Process, &c. , rased. What Defects in Records f^^''^^^' ^■' 
may be amended by the Judges, and what not. 

Item, our Lord the King had ordained and estab- 
lished by the authority of this present parliament, 
That for error assigned, or to be assigned, in any 
record, process, or warrant of attorney, original Assured dig- 
writ or judicial, panel or return, in any places of ^an^ or Vrft^' 
the same rased or interlined, or in any addition, 

4 



50 



LEGAL FORMS AND JURY TRIALS 



[Ch. V 



Changes to 
be made by 
judges if 
needful. 



Exceptions: 
records not to 
be amended 
in certain 
cases. 



Judges' right 
to correct 
variance be- 
tween record 
and certi- 
ficate of 
same. 



subtraction, or diminution of words, letters, titles, 
or parcel of letters, found in any such record, proc- 
ess, warrant of attorney, writ, panel, or return, 
which rasings, interlinings, addition, subtraction, 
or diminution, at the discretion of the King's judges 
of the courts and places, in which the said records 
or process by writ of error, or otherwise, be certi- 
fied, do appear suspected, no judgment nor record 
shall be reversed nor adnulled. 

II. And that the King's judges of the courts and 
places in which any record, process, word, plea, 
warrant of attorney, writ, panel, or return, which 
for the time shall be, shall have power to examine 
such records, process, words, pleas, warrants of 
attorney, writs, panels, or return, by them and their 
clerks, and to reform and amend (in affirmance of 
the judgments of such records and processes) all 
that which to them in their discretion seemeth to be 
misprision of the clerks in such record, processes, 
word, plea, warrant of attorney, writ, panel, and 
return ; (2) except appeals, indictments of treason 
and of felonies, and the outlawries of the same, and 
the substance of the proper names, surnames, and 
additions, left out in original writs and writs of 
exigent, according to the statute another time made 
the first year of King Henry, father to our lord the 
King that now is, and in other writs containing 
proclamation ; (3) so that by such misprision of the 
clerk no judgment shall be reversed nor adnulled. 
(4) And if any record, process, writ, warrant of 
attorney, return, or panel be certified defective, 
otherwise than according to the writing which thereof 
remaineth in the treasury, courts, or places from 
whence they be certified, the parties in affirmance 
of the judgments of such record and process shall 
have advantage to alledge, that the same writing is 
variant from the said certificate, and that found and 
certified, the same variance shall be by the said 
judges reformed and amended according to the first 
writino;. 



1450-1518] CONTEMPORARY EXPOSITION 51 

III. And moreover it is ordained, that if any 
record, or parcel of the same writ, return, panel, 
process, or warrant of attorney in the King's courts 
of chancery, exchequer, the one beach or the other, 
or in his treasury, be willingly stolen, taken away, 
withdrawn, or avoided by any clerk, or by other 
person, because whereof any judgment shall be re- 
versed ; that such stealer, taker away, withdrawer, 

or avoider, their procurators, counsellors, and abet- Punishment 

tors, thereof indicted, and by process thereupon ^orembez- 

' . 1 , . ^ zhng a record 

made thereof duly convict by their own confession, to be felony. 

or by inquest to be taken of lawful men, whereof 

the one half shall be of the men of any court of the 

same courts, and the other half of other, shall be 

judged for felons, and shall incur the pain of felony. 

(2) And that the judges of the said courts of the 

one bench or of the other, have power to hear and 

determine such defaults before them, and thereof to 

make due punishment as afore is said. 

IV. Provided always. That if any such record, 
process, writ, or warrant of attorney, panel, or re- 
turn, or parcel of the same, be now, or hereafter 
shall be exemplified in the King's chancery under 
the great seal, and such exemplification there of 
record inrolled without any rasing in the same place 
in the exemplification and the iurollment of the 
same, that another time for any error assigned, or 
to be assigned in the said record, process, writ, 

warrant of attorney, panel, or return, in any letter, Power of the 
word, clause, or matter of the same varying, or con- ^^^^* ^^^^• 
trary to the said exemplification and the inrollment, 
there shall be no judgment of the said records and 
process reversed nor adnuUed. 

CONTEMPORARY EXPOSITION 

FORTESCUE (1450) 

The way of proceeding in civil cases. 

Twelve Good and true Men being sworn, as in the Manner 
above related, legally qualified, that is, having over and besides 



52 LEGAL FORMS AND JURY TRIALS [Ch. V 

their Moveables, Possessions in Land sufficient (as was said) 
wherewith to maintain their Rank and Station ; neither sus- 
pected by, nor at Variance with either of the Parties ; all of the 
Neighbourhood ; there shall be read to them, in English, by the 
Court, the (a) Record and Nature of the Plea, at length, which 
is depending between the Parties ; and the Issue thereupon 
shall be plainly laid before them, concerning the Truth of which, 
those who are so sworn, are to certify the Court : Which done, 
each of the Parties, by (b) Themselves or their Counsel, in 
Presence of the Court, shall declare and lay open to the Jury 
all and singular the Matters and Evidences, whereby they think 
they may be able to inform the Court concerning the Truth of 
the Point in Question ; after which each of the Parties has a 
Liberty to produce before the Court all such Witnesses as they 
please, or can get to appear on their Behalf; who being charged 
upon their Oaths, shall give in Evidence all that they know 
touching the Truth of the Fact, concerning which the Parties 
are at Issue : And, if Necessity so require, the Witnesses may 
be heard and examined apart, till they shall have deposed all 
that they have to give in Evidence, so that what the One has 
declared shall not inform or induce another Witness of the same 
Side, to give his Evidence in the same Words, or to the very 
same Effect. The whole of the Evidence being gone thro', the 
Jurors shall confer together, at their Pleasure, as they shall 
think most convenient, uponthe Truth of the Issue before them; 
with as much deliberation and Leisure as they can well desire, 
being all the While in the Keeping of an Officer of the Court, 
in a Place assigned them for that Purpose, Lest any One should 
attempt by indirect Methods to influence them as to their Opin- 
ion, which they are to give in to the Court. Lastly, They are 
to return into Court and certify the Justices upon the Truth of 
the Issue so joined, in the Presence of the Parties (if they please 
to be present) particularly the Person who is Plaintiff in the 
Cause ; what the Jurors shall so certify in the Laws of England, 
is called (c) the Verdict. In Pursuance of which Verdict, the 
Justices shall render and form their Judgment. Notwithstand- 
ing, if the (d) Party, against whom such Verdict is obtained, 
complain that He is thereby aggrieved. He may sue out a Writ 
of Attaint, both against the Jui'y, and also against the Party 



1450-1518] CONTEMPORARY EXPOSITION 53 

who obtained it: in Virtue of which, if it be found upon the 
Oath of (e) Twenty-four Men (returned in Manner before ob- 
served, chosen and sworn in due Form of Law, who ought to 
have much better Estates than those who were first returned 
and sworn) that those, who were the Original Panel and sworn 
to try the Fact, have given a Verdict, f (15), contrary to 
Evidence, and their Oath ; Every One of the first Jury shall 
be (g) committed to the Publick Gaol, their G-oods shall be 
confiscated, their Possessions seised into the King's Hands, 
their Habitations and Houses shall be pulled down, their Wood- 
lands shall be selled, their Meadows shall be plowed up, and 
they themselves shall ever thenceforward be esteemed, in the 
Eye of the Law, Infamous, and in no Case whatsoever, h (16), 
are they to be admitted to give Evidence in any Court of 
Record : The Party, who suffered in the former Trial, shall 
be restored to every Thing they gave against Him, thro' Occa- 
sion of such their False Verdict : And, who then (tho' He 
should have no Regard to Conscience or Honesty) being so 
charged upon his Oath, would not declare the Truth from the 
bare Apprehensions and Shame of so Heavy a Punishment, and 
the very great Infamy which attends a contrary Behaviour: 
And, if perhaps, one or more amongst them should be so un- 
thinking or daring, as to prostitute their Character, yet the rest 
of the Jurors, probably, will set a better Value on their Repu- 
tations than to suffer either their Good Name or Possessions to 
be destroyed and seised in such a Manner : (i) Now, is not this 
Method of coming at the Truth better and more effectual, than 
that Way of Proceeding, which the Civil Laws prescribe ? No 
one's Cause or Right is, in this Case, lost, either by Death or 
Failure of Witnesses. The (k) Jurors returned are well known ; 
they are not procured for Hire ; They are not of Inferior Con- 
dition ; neither Strangers, nor People of Uncertain Characters, 
whose Circumstances or Prejudices may be unknown. The (k) 
Witnesses or Jurors are of the Neighbourhood, able to live of 
themselves, of Good Reputation and unexceptionable Charac- 
ters, not brought before the Court by either of the Parties, but 
(1) chosen and returned by a proper Officer, a worthy, disin- 
terested and indifferent Person, and obliged under a Penalty to 
appear upon the Trial. (k) They are well acquainted with all 



54 LEGAL FORMS AND JURY TRIALS [Ch. V 

the Facts which the Evidences depose, and with their several 
Characters, (m) What need of more Words? There is nothing 
omitted which can discover the Truth of the Case at Issue, 
nothing which can in any Respect be concealed from, or un- 
known to a Jury who are so appointed and returned, I say, as 
far as it is possible for the Wit of Man to devise. 

SlE John Foktescue, De Laudibus Legis Angliui. XXVI. (civl. 1450). 

SAINT-aERMAIN (1518) 

Doctor. If one of the twelve men of an inquest know the 
very truth of his own knowledge, and instructeth his fellows 
thereof, and they will in no wise give credence to him, and 
thereupon, because meat and drink is prohibited them, he is 
given to that point, that either he must assent to them, and give 
their verdict against his own knowledge and against his own 
conscience, or die for lack of meat, how may the law then stand 
with conscience, that will drive an innocent to that extremity, to 
be either forsworn, or to be famished and die for want of meat? 

Student. I take not the law of the realm to be, that the jury 
after they be sworn may not eat nor drink till they be agreed of 
the verdict, but truth it is there is a maxime and an old custom 
in the law that they shall not eat nor drink after they be sworn 
till they have given their verdict, without the assent and license 
of the justices and that is ordained by the law for eschew-. 
ing divers inconveniences that might follow thereupon, and that 
specially if they should eat or drink at the costs of the parties ; 
and therefore if they do contrary, it may be laid in arrest of 
the judgment ; but with the assent of the justices thej^ may both 
eat and drink, as if any of the jurors fall sick before they be 
agreed of the verdict, so sore that he may not commune of the 
verdict, then by the assent of the justices he may have meat 
and drink, and also such other things as be necessary for him. 
Cheistopher Saint-Germain, The Doctor and The Student. 158. 

CRITICAL COMMENT 

BLACKSTONE'S COMMENTARIES (1765) 

The learned judge has displayed much erudition in the 
beginning of this chapter to prove the antiquity of the trial by 



1765-1894] CRITICAL COMMENT 55 

jury ; but the trials referred to by the authors there cited, and 
even th&judicimn pariicm [the judgment of peers] mentioned 
in the celebrated chapter of Magna Charta, are trials which 
were something similar to that by a jury, rather than instances 
of 'a trial by jury according to the present established form. 
The judicium pariiim seems strictly the judgment of a subject's 
equals in the feudal courts of the king and barons. And 
so little appears to be ascertained by antiquarians respecting 
the introduction of the trial in criminal cases by two juries, 
that although it is one of the most important, it is certainly one 
of the most obscure and inexplicable, parts of the law of Eng- 
land. The unanimity of twelve men, so repugnant to all ex- 
perience of human conduct, passions, and understandings, 
could hardly in any age have been introduced into practice by 
a deliberate act of the legislature. 

But that the life, and perhaps the liberty and property, of a 
subject should not be affected by the concurring judgment of 
a less number than twelve, where more were present, was a law 
founded in reason and caution, and seems to be transmitted to 
us by the common law, or from immemorial antiquity. The 
grand assize might have consisted of more than twelve, yet the 
verdict might have been given by twelve or more; and if 
twelve did not agree, the assize was afforced, — that is, others 
were added till twelve did concur. . . . This was a majority, 
and not unanimity. A grand jury may consist of any number 
from twelve to twenty-three inclusive, but a presentment ought 
not to be made by less than twelve. . . . The same is true also 
of an inquisition before the coroner. In the high court of 
parliament and the court of the lord high steward a peer may 
be convicted by the greater number; yet there can be no 
conviction unless the greater number consists at least of 
twelve. . . . Under a commission of lunacy the jury was seven- 
teen, but twelve joined in the verdict. ... A jury upon a writ 
of inquiry may be more than twelve. In all these cases, if 
twelve only appeared, it followed as a necessary consequence 
that to act with effect they must have been unanimous. Hence 
this may be suggested as a conjecture respecting the origin 
of the unanimity of juries, that, as less than twelve — if 
twelve or more were present — could pronounce no effective 



56 LEGAL FORMS AND JURY TRIALS [Ch. V 

verdict, when twelve only were sworn, their unanimity became 

indispensable. 

Sir William Blackstone, Commentaries on the Laws of England. III. 376. 

GEORGE SPENCB (1846) 

The exercise of the control last adverted to on the part of the 
judges was the foundation of that system of rules in regard to 
evidence which has since constituted so large and important a 
branch of the law of England. 

The practice of receiving evidence openly at the bar immedi- 
ately led to another remarkable result — namely, the great 
extension of the duty of an advocate. "In earlier times — 
upon criminal as well as civil inquiries — the jury after they had 
been sworn and merely charged by the court as to the points 
at issue, retired to consult together in secret without hearing 
either witnesses or counsel at the bar. But now the scene was 
totally changed ; witnesses were examined and cross-examined 
in open court; the floodgates of forensic eloquence were opened, 
and full scope given to the advocate to exercise his ingenuity 
and powers of persuasion on the jurors, to whose discretion the 
power of judging on matters of fact was now intrusted." 

Another important consequence followed — when the jury in 
an assize gave or were presumed to give their verdict upon 
facts within their knowledge, if they came to a wrong decision 
they must usually have been guilty of perjury. When they 
became jndges of the facts upon evidence, the liability to 
attaint would have been as unreasonable and unjust as in the 
case of an ordinary jury: it therefore virtually fell into disuse. 
Thenceforth the means of correcting error and mistake on the 
part of a jury, was left without adequate remedy by the courts 
of law until the seventeenth century, when the practice of 
granting new trials was introduced, which I shall have occasion 
again to advert to in tracing the equitable jurisdiction of the 
Court of Chancery (1). 

The last change in the institution of jury trial is of compara- 
tively modern introduction ; it is the limiting the functions of 
the jury to that of being judges of fact upon evidence laid 
before them. The principles, Mr. Starkie obsei'ves, which 
warranted this change are obvious ; it was found that the 



1765-1894] CRITICAL COMMENT 67 

cause of truth suffered more from the prejudices which the 
residence of jurors in the neighbourhood of the disputed fact 
were likely to engender, than was gained from knowledge and 
means of judging so acquired (2). Other inconveniences arose 
from the rules as to the Venue, so that, after various modifica- 
tions as to the number of persons from the hundred or vicinage 
that were to be put upon the jury by the Stat. 4 & 5 Anne, c. 
16, and 24 Geo. II., c. 18, the law requiring jurors to be re- 
turned from the vicinage or hundred was abolished in all civil 
actions and it was directed that they should be summoned from 
the body of the county. B}' a decision of the Court of Queen's 
Bench in the first year of Queen Anne, it was held that if a 
jury gave a verdict of their own knowledge, they ought so to 
inform the Court, that they might be sworn as witnesses. 
This, and another case in the reign of George I. put an end to all 
remains of the ancient functions of juries as recognitors. The 
question, therefore, adds Mr. Starkie, When did the trial by 
jury begin? admits of no definite answer, otherwise than by 
referring to the different transitions to which allusion has been 
made (3). 

George &p'E.'sce., Equitable Jurisdiction of the Court of Chancery. I. 129. 

FORSYTH (1852) 

The rise and growth of the Jury system is a subject which 
ought to interest not only the lawyer but all who value the 
institutions of England, of which this is one of the most re- 
markable, being until recently a distinctive feature of our 
jurisprudence. . . . Trial by Jury does not owe its existence 
to any positive law : — -it is not the creature of an Act of 
Parliament establishing the form and defining the functions 
of the new tribunal. It arose, as I hope to show, silently and 
gradually out of the usages of a state of society which has 
forever passed away. . . . Few subjects have exercised the 
ingenuity and baffled the research of the historian more than 
the origin of the jury. ... I believe it to be capable almost 
of demonstration, that the English jury is of indigenous 
growth, and was not copied or borrowed from any of the 
tribunals that existed on the continent. . . . 

The first mention of the trial by assise in our existing 



58 LEGAL FORMS AND JURY TRLALS [Ch. V 

statutes occurs in the Constitutions of Clarendon, a. d. 1164, 
where it was provided that if any dispute arose between a 
layman and a clerk as to whether a particular tenement was 
the property of the church or belonged to a lay fief, this was 
to be determined before the chief justiciary of the kingdom, by 
the verdict of twelve lawful men. . . . The problem is to dis- 
cover what was the origin and constitution of the jurata. . . . 

I conclude that, in the earliest times, disputes respecting 
lands were decided by the voice of the community of the 
county or hundred, as the case might be, where the parties 
lived, that afterwards a select number was substituted for the 
whole, who gave their testimony upon oath, and therefore were 
called the ' jurata; ' and that this suggested to Henry II. and 
his councillors the idea of the assise, which was nothing but 
the jurata in a technical form, and limited to inilites, or knights 
who were summoned by a writ of the sheriff in virtue of a 
precept from the king. . . . 

As the use of juries became more frequent, and the advan- 
tages of employing them in the decision of disputes more mani- 
fest, the witnesses who formed the secta of a plaintiff began to 
give their evidence before them, and, like the attesting wit- 
nesses to deeds, furnished them with that information which in 
theory they were supposed to possess previously respecting the 
cause of quarrel. . . . 

In the time of Fortescue, who was lord chancellor in the 
reign of Henry VI., with the exception of the requirement of 
personal knowledge in the jurors derived from near neighbour- 
hood of residence, the jury system had become in all its 
essential features similar to what now exists. . . . 

In England, the jury and the witnesses were for many years 
the same, so that it was only just that they should be punished 
if they wilfully gave their evidence, that is their verdict, con- 
trary to what they knew to be the truth. And this seems to 
have been too common. In the tenth year of the reign of 
Henry VI. a petition was presented to the Commons, com- 
plaining of the disherisons and injustice committed in assises 
and other inquests by perjured jurors, and praying that in a 
writ of attaint the plaintiff may recover his damages against 
the petit jury, and every member thereof, as well as against 



1765-1894] CRITICAL COMMENT 59 

the defendant, and that no juror might serve on an attaint 
unless he had an estate of five pounds a year in the county. 

William Eorstth, History of Trial by Jury. 1-185. 
J. R. GREEN (1874) 

The Wars of the Roses did far more than ruin one royal 
house or set up another on the throne. If they did not utterly 
destroy English freedom, they arrested its progress for more 
than a hundred 3^ears. They found England, in the words of 
Commines, "among all the world's lordships of which I have 
knowledge, that where the public weal is best ordered, and 
where least violence reigns over the people." A King of 
England — the shrewd observer noticed — "can undertake no 
enterprise of account without assembling his Parliament, which 
is a thing most wise and holy, and therefore are these kings 
stronger and better served " than the despotic sovereigns of 
the Continent. The English kingship, as a judge, Sir John 
Fortescue, could boast when writing at this time, was not an 
absolute but a limited monarchy; the land was not a laud 
where the will of the prince was itself the law, but where the 
prince could neither make laws nor impose taxes save by his 
subjects' consent. At no time had Parliament played so con- 
stant and prominent a part in the government of the realm. 
At no time had the principles of constitutional liberty seemed 
so thoroughly understood and so dear to the people at large. 
The long Parliamentary contest between the Crown and the 
two Houses since the days of Edward the First had firmly 
established the great securities of national liberty — the right 
of freedom from arbitrary taxation, from arbitrary legislation, 
from arbitrary imprisonment, and the responsibility of even 
the highest servants of the Crown to Parliament and to the 
law. But with the close of the struggle for the succession 
this liberty suddenly disappears. We enter on an epoch of 
constitutional retrogression in which the slow work of the age 
that went before it was rapidly undone. Parliamentary life 
was almost suspended, or was turned into a mere form by the 
overpowering influence of the Crown. The legislative powers 
of the two Houses were usurped by the royal Council. 

J. R. Green, Short History of the English People. 289, 290. 



60 LEGAL FORMS AND JURY TRIALS [Ch. V 

TASWELL-LANGMEAD (1879) 

The use of a Jury, both for criminal presentment and civil 
inquest, is mentioned for the first time in our statute law in 
the Constitutions of Clarendon. The way in which the jury 
is therein referred to seems to imply that it had already grown 
into general use and favour. When one could be found to 
accuse a powerful layman amenable to the Bishop's jurisdic- 
tion, the sheriffs, at the Bishop's request, were directed to 
"swear twelve lawful men of the^ neighbourhood to tell the 
truth, according to their conscience," and the same statute 
declared that " by the recognition of twelve lawful men," the 
Chief Justice should decide all disputes as to the lay or clerical 
tenure of land. 

It was in the G-rand Assize (the exact date of which is un- 
known) that the principle of recognition by jury, having grad- 
ually grown into familiar use in various civil matters, was 
applied by Henry II., in an expanded and technical form, to 
the decision of suits to try the right to land. It is described 
by Glanvill as a Royal boon conferred on the people, with the 
counsel and consent of the proceres, to relieve freeholders from 
the hardship of defending the title to their lands by the doubt- 
ful issue of trial by battle. By the Grand Assize the defend- 
ant was allowed his choice between wager of battle and the 
recognition (i. e., knowledge) of a jury of twelve sworn knights 
of the vicinage summoned for that purpose by the sheriff. 

In actions not seeking to detei'mine the absolute right to 
land, but dealing with the seisin only (of which the "assize 
of novel disseisin " was the most important) , the sheriff himself 
chose twelve knights or freeholders (legales homines) of the 
vicinage, who were sworn to try the question. In both cases 
the recognitors were sworn to found their verdict upon their 
own knowledge, gained either by eye-witness or by the words 
of their fathers, or by such words as they are bound to have 
as much confidence in as if they were their own. The proceed- 
ing by assize was in fact merely the sworn testimony of a 
certain number of persons summoned to give evidence upon 
matters within their own knowledge. They were themselves 
the only witnesses. If all were ignorant of the facts, a fresh 
jury had to be summoned ; if some of them only were ignorant, 



1765-1894] CRITICAL COMMENT 61 

or if they could not agree, others were to be c. Wed — a process 
subsequently called afforcing the jury — until a verdict could 
be obtained from twelve unanimous witnesses. 

The remedy by Assize was subsequently improved by several 
Acts of Parliament, particularly 13 Ed. 1. c. 25 ; and as all 
actions on the assize were tried in the King's Court or in that 
of the Justices Itinerant, the jurisdiction of the County and 
Hundred Courts began, from this period, rapidly to decline. 

By the Assize of Clarendon the principle of Recognition by 
jury was extended to criminal cases. It was ordained that in 
every county twelve lawful men of each hundred, with four 
lawful men from each township, should be sworn to present all 
reputed criminals of their district in each County court. The 
persons so presented were to be at once seized and sent to the 
water ordeal. This was simply a reconstitution or revival, in 
an expanded form, of the old English institution aiialogous to a 
Grand Jury, which, as we have seen, had existed at least since 
the time of King Ethelred II. 

By the Articles of Visitation issued under Richard I. in 1194, 
as instructions to the Itinerant Justices, the election and con- 
stitution of the Jury of Presentment established by Henry II. 
was further regulated, and assimilated to the system already in 
use for nominating the recognitors of the Grand Assize. From 
this developed Jury of Presentment our present Grand Jury has 
historically descended. 

The establishment of this system of combined presentment 
and ordeal had the effect of abolishing, in all criminal cases, 
the ancient practice of compurgation by the oath of friends, 
the "manifest fountain of unblushing perjury." 

In the year 1215 the ordeal was abolished throughout 
Christendom by the fourth Lateran Council, and there remained 
only, for criminal trials in England, the Grand Jury and the 
Combat. But the Combat was not applicable unless an injured 
prosecutor, or " appellant," came forward to demand it; and as 
the Grand Jury was found inadequate to secure perfect justice, 
the practice (which had been introduced even before the aboli- 
tion of ordeal) gradually grew up of allowing a second, or 
Petit Jury to affirm, or traverse, the testimony of the first set 
of inquest men. This became the general usage in the reign of 



62 LEGAL FORMS AND JURY TRIALS [Ch. V 

Henry III. Still for a long time no prisoner was compellable 
to plead, that is, lie might refuse to be tried by the jury: but in 
this case he was remanded to prison, and from the date of the 
Statute of Westminster I. (3 Edward I.) was liable to the bar- 
barous punishment called peine forte et dure, which was only 
abolished so late as the reign of George III. 

It is important to bear in mind that in Trial by Jury as per- 
manently established, both in Civil and Criminal Cases, by 
Henry II. , the function of the Jury long continued very differ- 
ent from that of the modern tribunal. The jurymen were still 
mere recognitors, deciding simply on their own knowledge or 
from tradition, and not upon evidence produced before them; 
and it was for this reason that they were always selected from 
the hundred or vicinage in which the question arose. 

The later development, common to the Civil and Criminal 
Jury alike, by which the jurors gradually changed from witnesses 
into judges of fact, the proof of which rested exclusively on the 
evidence of others, has now to be considered. The number of 
the recognitors was at first undefined, but when GManvill wrote, 
under Henry II., twelve appears to have been the usual, though 
not the invariable, number mentioned in the King's writs. 
We have seen that it was necessary that twelve jurymen should 
concur in their verdict, and this result, in Civil cases at least, 
was procured by " afforcing " the jury, that is, adding other 
recognitors from the vicinage who were acquainted with the 
matter. But the difficulty of procuring a verdict of twelve, 
caused for a time the verdict of a majority to be received. In 
the reign of Edwai'd III., however, the necessity for a unani- 
mous verdict of twelve was re-established. 

Under Henry III., special witnesses (such as the witnesses 
to a deed) were sometimes summoned together with, and formed 
part of, the Jury. 

In the Year Books of 23rd Edward III. mention is made of 
witnesses being adjoined to the Jury to give them their testi- 
mony, but without having any voice in the verdict. This is 
the first indication of the Jury deciding on evidence formally 
produced in addition to their own knowledge, and forms the 
connecting link hetiveen the ancient and the modern Jury. 

Early in the reign of Henry IV, a further advance was made. 



1765-1894] CRITICAL COMMENT 63 

All evidence was required to be given at the bar of the court, 
so that the Judges might be enabled to exclude improper 
testimony. 

From this change flowed two important consequences: (1) 
From the exercise of control on the part of the Judges sprang 
up the whole systems of rules as to evidence. (2) The practice 
of receiving evidence openly at the bar of the Court produced a 
great extension of the duty of an advocate. Henceforward 
'•witnesses were examined and cross-examined in open court; 
the floodgates of forensic eloquence were opened, and full 
scope given to the advocate to exercise his ingenuity and 
power of persuasion on the jurors, to whose discretion the 
power of judging on matters of fact were now intrusted." 

In the treatise of Chief Justice Fortescue, " De Laudibus 
Legum Anglise," written soon after the year 1450, we have clear 
evidence that the mode of procedure before juries by viv^ voce 
evidence was the same as at present. 

But Juries were still for a long time entitled to rely on their 
own knowledge in addition to the evidence. In the first year 
of Queen Anne, the Court of Queen's Bench decided that if a 
Jury gave a verdict of their own knowledge, they ought so to 
inform the Court, that they might be sworn as witnesses. This, 
and a subsequent case in the reign of George I., at length put 
an end to all remains of the ancient functions of Juries as 
Recognitors. 

In the same way the ancient rule requiring jurors to be 
returned from the vicinage or hundred, which arose when jury- 
men were themselves the witnesses, was, after various modifica- 
tions, abolished in all Civil actions in the reign of George II., 
and it was directed that juries should be summoned from the 
body of the county. 

T. P. Taswell-Langmead, English Constitutional History. 136-141. 
HAKNIS TAYLOR (1889) 

No attempt to outline the form which the English constitu- 
tional system assumed during the fourteenth and fifteenth 
centuries should fail to embrace some allusion to the accounts 
given of that system by Sir John Fortescue, the great Lan- 
castrian lawyer, who attended Queen Margaret in her exile 



64 LEGAL FORMS AND JURY TRIALS [Ch. V 

on the Continent, where he seems to have undertaken, for a 
time at least, the political edacation of the heir-apparent. 
From the De Laudibus Legum Angiiae, which was designed 
to instruct the prince how he should rule over the English; 
from the De Dominio Regali et Politico, a Treatise on Abso- 
lute and Limited Monarchy, and in particular on the Monarchy 
of England ; and from the De Natura Legis Naturae, it is 
possible to draw something like a definite idea of the extent 
to which the English kingship had become limited towards the 
end of the fifteenth century by the growth of the parliament 
on the one hand, and by growth of the system of legal admin- 
istration on the other. Under the influence of mediaeval poli- 
tical ideas, the writer divides all governments into three 
classes; the first of which he describes as regal government 
(dominium regale), the second as political government (dom- 
inium politicum), and the third as government of a mixed 
nature, regal and political (dominium regale et politicum). 
To the third class England belongs. . . . 

In England the king " cannot by himself or his ministers 
lay taxes, subsidies, or any imposition of w'hat kind soever, 
upon the subject ; he cannot alter the laws, or make new ones, 
without the express consent of the whole kingdom in parlia- 
ment assembled." Sir John, who had been chief justice of 
the king's bench, while explaining how the liberties of the 
nation as a whole were protected by the parliamentary system, 
did not forget to point out how the life, liberty, and property 
of the individual subject were guarded by the system of legal 
administration. In the account given of the provisions made 
for the local administration of justice, a careful statement is 
contained of the procedure in jury trials both in civil and 
criminal cases. In a civil case the issue is tried by an im- 
partial jury taken from the neighbourhood ; in a capital case 
the jury is not only selected impartially from the neighbour- 
hood, but the defendant is given a large number of challenges, 
for which he need assign no cause or reason. "In a prose- 
cution carried on in this manner there is nothing cruel, nothing 
inhuman ; an innocent person cannot suffer in life or limb ; 
he has no reason to dread the prejudice or calumny of his 
enemies; he will not, can not, be put to the rack to gratify 



1765-1894] CRITICAL COMMENT Qb 

their will and pleasure. In such a constitution, under such 
laws, every man may live safely and securely." 

Thus by the middle of the fifteenth century the personal 
and political rights of the English people, which had long 
before been defined in statutes and charters, were perman- 
ently and practically guaranteed to the nation as a whole 
by the parliamentary system on the one hand and to the in- 
dividual subject by the jury system on the other. 

Hannis Taylor, Origin and Growth of the English Constitution. I. 560-562. 
STEVENS (1894) 

And later on, jurors without information were separated 
from those possessing it, the former becomiug judges of evi- 
dence only, and the latter witnesses ; a decision being given 
by the former upon the testimony of the latter, and the law 
in the case being decided by the presiding official in the king's 
name. By 1450 we have distinct evidence that the mode of 
procedure was the same as that in modern use, though in 
occasional instances the ancient functions of jurors lingered 
as late as to the accession of the House of Hanover. 

C. E. Stevens, Sources of the Constitution of the United States. 237. 



66 PETITION OF RIGHT [Ch. VI 



Chaptee VI 
PETITION OP RIGHT (1628) 

SUGGESTIONS 

This document — Petition of Right — was the result of the struggle 
between King Charles I. and the members of Parliament. A Com- 
mittee of Grievances, members of the third Parliament (March to 
June, 1828), met together to consider what steps should be taken to 
restore ancient laws and liberties. For two months the attention of 
both Houses, either in conference or in separate debate, was almost 
exclusively devoted to this important subject. 

The King attempted to satisfy the House of Commons by a simple 
confirmation of Magna Charta, but Sir Edward Coke warned the 
House to proceed by Bill. In fact the far-famed Petition may be 
said to have thriven under the especial tutelage of Sir Edward Coke: 
the part assigned to him was the application of reasons for the laws 
and precedents which had been quoted in favour of the contentions of 
Parliament. When Charles I. suggested confirming Magna Charta 
without additions, paragraphs, or explanations, Coke said — " Let us 
put up a Petition of Right : not that I distrust the King, but that I 
cannot take his trust but in a parliamentary way." 

The Petition of Right was then drawn up by the Commons. After 
much discussion on the part of both the House of Lords and the 
House of Commons the petition was passed without any material 
alteration. On the 2nd of June, 1628, the King attended in the 
House of Lords to give his answer to the Bill. To the great surprise 
of Peers and Commoners, the King returned a long and equivocal 
answer, amounting almost to a refusal to pass the Bill. The Com- 
mons gave vent to their ill-humour by impeaching Dr. Main waring, 
one of the Royal Councillors, and were proceeding to censure the 
favourite, Buckingham, when, on June 7th, the King signed the great 
contract in the usual form. 

This great constitutional compact between the Ci'own and the 
People demands peculiar investigation. The documents earlier cited 
have had no masterful personality standing behind them. The his- 
tory of this document is closely connected with the heroes of the 
Puritan era, and the personal preferences and legal theories of Pym, 



1628] TEXT 67 

Hampden, Sir John Eliot, and Sir Edward Coke are expressed in 
almost every word in the petition. The close connection between the 
British subject at home and in the colonies, even at this early period 
in colonial history, should be taken into consideration. The dominant 
spirit of " redress," as emphatically expressed in 1628, was the corner- 
stone of all later petitions addressed to royal authority. 
For Outlines and Material, see Appendix A. 



DOCUMENT 
Petition of Right (June 7, 1628) 

The Petition exhibited to his Majesty by the Lords The Statutes 

Spiritual and Temporal, and Commons, in this ^f^j^^^f^^"^^ 

present Parliament assembled, concerning divers translated 

Rights and Liberties of the Subjects, with the by William 

King's Majesty's royal ansioer thereunto in full g^g^^ ^char- 

Parliament. ters, 505-507. 

To THE King's Most Excellent Majesty, Famous 

Humbly show unto our Sovereign Lord the King, j^gnt when' 

the Lords Spiritual and Temporal, and Commons in Charles I. is 

Parliament assembled, that whereas it is declared g^^j^'^fj^*^ 

and enacted by a statute made in the time of the " Petition of 

reign of King Edward L, commonly called Statutum Right." 

de Tallaqio non concedendo, that no tallage or aid ''Declara- 

,,111.-, •■ . -. 1 , 1 . 1 • 1 • • tory statute" 

shall be laid or levied by the king or his heirs m declaring 

this realm, without the good will and assent of the former acts 

archbishops, bishops, earls, barons, knights, bur- * 

gesses, and other the freemen of the commonalty of "statute" 

this realm ; and by authority of parliament holden has been 

in the five-and-twentieth year of the reign of King ^^^pradium 

Edward III., it is declared and enacted, that from of Confirma- 

thenceforth no person shall be compelled to make ^^^ Charta- 

rum. 
any loans to the king against his will, because such 

loans were against reason and the franchise of the 
land ; and by other laws of this realm it is provided, 
that none should be charged by any charge or impo- 
sition, called a benevolence, nor by such like charge ; 
by which the statutes before mentioned, and other 
the good laws and statutes of this realm, your sub- 
jects have inherited this freedom, that they should 



68 



PETITION OF RIGHT 



[Ch. VI 



"Benevo- 
lences " first 
enacted in 
the reign of 
Edward IV. 
(1473) : tliey 
were analo- 
gous to 
forced loans 
in preceding 
reigns. 



Magna 
Charta's 
Habeas 
Corpus. 



This statute, 
' ' liberty of 
the subject," 
grew out of 
Magna 
Charta, Art. 
xxxix. 



not be compelled to contribute to any tax, tallage, 
aid, or other like charge not set by common consent, 
in parliament : 

II. Yet nevertheless of late divers commissions 
directed to sundry commissioners in several counties, 
with instructions, have issued ; by means whereof 
your people have been in divers places assembled, 
and required to lend certain sums of money unto 
your Majesty, and many of them, upon their refusal 
so to do, have had an oath administered unto them 
not warrantable by the laws or statutes of this realm, 
and have been constrained to become bound and 
make appearance and give utterance before your 
Privy Council, and in other places, and others of 
them have been therefore imprisoned, confined, and 
sundry other ways molested and disquieted ; and 
divers other charges have been laid and levied 
upon your people in several counties by lord lieu- 
tenants, deputy lieutenants, commissioners for mus- 
ters, justices of peace and others, by command or 
direction from your Majesty or your Privy Council, 
against the laws and free customs of the realm. 

III. And whereas also by the statute called " The 
Great Charter of the liberties of England," it is 
declared and enacted that no freeman may be taken 
or imprisoned or be disseised of his freeholds or 
liberties, or his free customs, or be outlawed or 
exiled, or in any manner destroyed, but by the 
lawful judgment of his peers, or by the law of the 
land. 

IV. And in the eight-aud-twentieth year of the 
reign of King Edward III., it was declared and 
enacted by authority of parliament, that no man, 
of what estate or condition that he be, should be 
put out of his lands or tenements, nor taken, nor 
imprisoned, nor disherited, nor put to death without 
being brought to answer by due process of law. 

V. Nevertheless, against the tenor of the said 
statutes, and other the good laws and statutes of 



1628] TEXT 69 

your realm to that end provided, divers of your 
subjects have of late been imprisoned without any 
cause showed ; and when for their deliverance they 
were brought before your justices, by your Majesty's 
writs of habeas corpus, there to undergo and receive These sub- 
as the court should order, and their keepers com- ^^^*® ^®''® 
' ^ also mem- 

manded to certify the causes of their detainer, no bers of Par- 
cause was certified, but that they were detained by hament, 

iDiT)risoiiG(l 
your Majesty's special command, signified by the for utter- 
lords of your Privy Council, and yet were returned ances on the 
back to several prisons, without being charged with HoJge ^f^ 
anything to which they might make answer accord- Commons, 
ing to the law. 

VI. And whereas of late great companies of sol- 
diers and mariners have been dispersed into divers . 
counties of the realm, and the inhabitants against djers and 
their wills have been compelled to receive them into marhiers 
their houses, and there to suffer them to sojourn oniVin\,he 
against the laws and customs of this realm, and to time of war. 
the great grievance and vexation of the people : 

VII. And whereas also by authority of parlia- 
ment, in the five-and-twentieth year of the reign of 
King Edward III., it is declared and enacted, that 
no man shall be forejudged of life or limb against 
the form of the Great Charter and the law of the 
land ; and by the said G-reat Charter, and other the 
laws and statutes of this your realm, no man ought 
to be adjudged to death but by the laws established 
in this your realm, either by the customs of the 
same realm or by acts of parliament: and whereas 
no offender of what kind soever is exempted from 
the proceedings to be used, and punishments to be 
inflicted by the laws and statutes of this your realm : 
nevertheless of late time divers commissions under 
your Majesty's great seal have issued forth, by 
which certain persons have been assigned and 
appointed commissioners with power and authority 

to proceed within the land, according to the justice -^^^as contrary 
of martial law, against such soldiers or mariners, or to statute 25 



70 PETITION OF RIGHT [Ch. VI 

Edward other dissolute persons ioininaf with them, as should 

III 'S IT J O ' 

thouf^h commit any murder, robbery, felony, mutiny, or 

Elizabeth other outrage or misdemeanour whatsoever, and by 

and Charles gQ^jj summary course and order as is affreeable to 
I. did not '^ . . . ^ „ 

hesitate to martial law, and as is used m armies m time of war, 

apply martial to proceed to the trial and condemnation of such 

ians in times offenders, and them to cause to be executed and 

of peace. put to death according to the law martial. 

VIII. By pretext whereof some of your Majesty's 
subjects have been by some of the said commission- 
ers put to death, when and where, if by the laws 
and statutes of the laud they had deserved death, 
by the same laws and statutes also they might, and 
by no other ought to have been, judged and 
executed. 

IX. And also sundry grievous offenders, by 
colour thereof claiming an exemption, have escaped 
the punishments due to them by the laws and stat- 
utes of this your realm, by reason that divers of 
your officers and ministers of justice have unjustly 
refused or forborne to proceed against such offend- 
ers according to the same laws and statutes, upon 
pretence that the said offenders were punishable 
only by martial law, and by authority of such com- 
missions as aforesaid ; which commissions, and all 
other of like nature, are wholly and directly contrary 
to the said laws and statutes of this your realm. 

X. They do therefore humbly pray your most 
excellent Majesty, that no man hereafter be com- 
pelled to make or yield any gift, loan, benevolence, 
tax, or such like charge, without common consent 
by act of parliament ; and that none be called to 
make answer, or take such oath, or to give attend- 
ance, or be confined, or otherwise molested or dis- 
quieted concerning the same or for refusal thereof ; 
and that no freeman, in any such manner as is before 
mentioned, be imprisoned or detained ; and that 
your Majesty would be pleased to remove the said 
soldiers and mariners, and that your people may not 



1628] TEXT 71 

be so burdened iu time to come ; and that the fore- 
said commissions, for proceeding by martial law, 
may be revoked and annulled ; and that hereafter 
no commissions of like nature may issue forth to 
any person or persons whatsoever to be executed as 
aforesaid, lest by colour of them any of your 
Majesty's subjects be destroyed or put to death 
contrary to the laws and franchise of the land. 

XI. All which they most humbly pray of your 
most excellent Majesty as their rights and liberties, 
according to the laws and statutes of this realm ; 
and that your Majesty would also vouchsafe to 
declare, that the awards, doings, and proceedings, 
to the prejudice of your people in any of the prem- 
ises, shall not be drawn hereafter into consequence 
or example ; and that your Majesty would be also 
graciously pleased, for the further comfort and 
safety of your people, to declare your royal will and 
pleasure, that in the things aforesaid all your offi- 
cers and ministers shall sei've you according to the 
laws and statutes of this realm, as they tender the 
honour of your Majesty, and the prosperity of this 
kingdom. 

[Which Petition being read the 2nd of June, 1628, 
the king's answer was thus delivered unto it. 

The King willeth that right be done according to 
the laws and customs of the realm ; and that the 
statutes be put in due execution, that his subjects 
may have no cause to complain of any wrong or 
oppressions, contrary to their just rights and liber- 
ties, to the preservation whereof he holds himself as 
well obliged as of his prerogative. 

This form was unusual and was therefore thought 

to be an evasion : therefore on June 7 the kino- orave 

a second answer in the formula usual for approving; ^°^* ^^^^* 
vn o -A 1 -M j^ -^ -7 ^ T ■ ^ n t^it comme 

Dills : cioit droit fait comme il est desire. j il est desire 



72 PETITION OF RIGHT [Ch. VI 

CONTEMPORARY EXPOSITION 

CHARLES FIRST (162S) 

The profession of both Houses, in time of hammering this 

petition, was no ways to entrench upon my prerogative, saying 

they had neither intention or power to hurt it; therefore it 

must needs be conceived I granted no new, but only confirmed 

the ancient liberties of my subjects, yet to show the clearness 

of my intentions, that I have neither repented nor mean to recede 

from anything I have promised you, I do here declare that those 

things which have been done whereby men had some cause to 

suspect the liberty of the subjects to be entrenched upon — 

which indeed was the first and true ground of the petition — 

shall not hereafter be drawn into example for your prejudice ; 

and in time to come, in the word of a king, you shall not have 

the like cause to complain. 

Charles First's Speech at Prorogation of Parliament, June 26th, 
1628, Parliamentary History. 

CRITICAL COMMENT 

HALLAM (1827) 

The principal matters of complaint taken up by the Commons 
in this session (Parliament, 1628) were, the exaction of money 
under the name of loans ; the commitment of those who refused 
compliance, and the late decision of the king's bench remand- 
ing them a habeas corpus ; the billeting of soldiers on private 
persons, which had occurred in the last years, whether for con- 
venience or for purposes of intimidation and annoyance; and 
the commissions to try military offenders by martial law. . . . 
These four grievances or abuses form the foundation of the 
Petition of Right. 

Henry Hallam, Constitutional History of England, VII. 286. 

NUGENT (1831) 

The government went on, oppressing at home, and blun- 
dering in all its measures abroad. A war was foolishly 
undertaken against France, and more foolishly conducted. 
Buckingham led an expedition against Rhe, and failed ignomin- 



1827-1S90] CRITICAL COMMENT 73 

iously. Ill the meantime, soldiers were billeted on the people. 
Crimes, of which ordinary justice should have taken cognizance, 
were punished by martial law. Nearly eighty gentlemen were 
imprisoned for refusing to contribute to the forced loan. The 
lower people, who showed any signs of insubordination, were 
pressed into the fleet or compelled to serve in the army. Money, 
however, came in slowly ; and the king was compelled to sum- 
mon another Parliament. In the hope of conciliating his sub- 
jects, he set at liberty the persons who had been imprisoned 
for refusing to comply with his unlawful demands. Hampden 
regained his freedom ; and was immediately re-elected burgess 
for Wendover. 

Early in 1628 the Parliament met. During its first session, 
the Commons prevailed on the king, after many delays and 
much equivocation, to give, in return for five subsidies, his full 
and solemn assent to that celebrated instrument — the second 
great charter of the liberties of England — known by the name 
of the Petition of Right. By agreeing to this act, the king 
bound himself to raise no taxes without the consent of Parlia- 
ment, to imprison no man except by legal process, to billet no 
more soldiers on the people, and to leave the cognizance of 
offences to the ordinarj^ tribunals. 

In the summer this memorable Parliament was prorogued. 
It met again in January, 1629. 

Buckingham was no more. That weak, violent, and dissolute 
adventurer, who, with no talents or acquirements but those of 
a mere courtier, had, in a great crisis of foreign and domestic 
politics, ventured on the part of prime minister, had fallen dur- 
ing the recess of Parliament, by the hand of an assassin. Both 
before and after his death, the war had been feebly and 
unsuccessfully conducted. The king had continued, in direct 
violation of the Petition of Right, to raise tonnage and pound- 
age, without the consent of Parliament. The troops had again 
been billeted on the people ; and it was clear to the Commons 
that the five subsidies which they had given, as the price of 
the national liberties, had been given in vain. 

Lord Ndgent, Memorials of Hampden in Edinburgh Revieio. LIV. 516-517. 



74 PETITION OF RIGHT [Ch. VI 

MAC AULA Y (1849) 

The king called a third Parliament, and soon perceived that 
the opposition was stronger and fiercer than ever. He now 
determined on a change of tactics. Instead of opposing an 
inflexible resistance to the demands of the Commons, he, after 
much altercation and many evasions, agreed to a compromise 
which, if he had faithfully adhered to it, would have averted a 
long series of calamities. The parliament granted an ample 
supply. The king ratified, in the most solemn manner, that 
celebrated law which is known by the name of the Petition of 
Right, and which is the second great charter of the liberties of 
England. By ratifying that law, he bound himself never again 
to raise money without the consent of the Houses, never again 
to imprison any person, except in due coui'se of law, and never 
again to subject his people to the jurisdiction of courts martial. 

The day on which the ro^'-al sanction was, after many delays, 
solemnly given to this great act, was a day of joy and hope. 
The Commons, who crowded the bar of the House of Lords, 
broke forth into loud acclamations as soon as the clerk had 
pronounced the ancient form of words by which our princes 
have, during many ages, signified their assent to the wishes of 
the estates of the realm. Those acclamations were re-echoed by 
the voice of the capital and of the nation ; but, within three 
weeks, it became manifest that Charles had no intention of 
observing the compact into which he had entered. The supply 
given by the representatives of the nation was collected. The 
promise by which that supply had been obtained was broken. 
A violent contest followed. The parliament was dissolved 
with every mark of royal displeasure. 

Thomas Babington Macaulay, History of England. I. 66. 
CREASY (1859) 

On the 2nd of June, a.d. 1628, the peers were assembled, 
the Commons summoned, and the king appeared in the House 
of Lords to give his answer in Parliament to the bill. But, to 
the surprise of all men, Charles, instead of using the well- 
known ancient form of words by which such a bill receives the 
royal assent, addressed the Parliament and told them, "the 



1827-1890] CRITICAL COMMENT 75 

king willeth that right be done according to the laws and 
customs of the realm, and that the statutes be put in due 
execution, that his subjects may have no cause to complain of 
any wrong or oppression contrary to their just rights and 
liberties ; to the preservation whereof he holds himself in con- 
science as well obliged, as of his prerogative." 

The Commons returned highly incensed with this evasive 
circumlocution. They forthwith began to assail the favourites 
of the Crown, and impeached a Dr. Mainwaring who had 
preached a sermon, which had afterwards been printed by the 
king's command, in which discourse the right divine of kings 
to deal as they pleased with their subjects' property on emei'- 
gencies, whether parliament consented or not, and the duty of 
passive obedience in the subject, were only and unreservedly 
maintained. The Commons procured the trial and condemna- 
tion of this satellite of arbitrary power, and wei'e proceeding 
to assail others higher in Charles's councils, when the king's 
obstinacy at length gave way, and the Petition of Right 
received the royal assent in the customary form of Norman 
French, and this second great solemn declaration of the liberties 
of Englishmen was declared to be the law of the land, amidst 
the general rejoicings of the nation. 

E. S. Creasy, Rise and Progress of the English Constitution. 259. 
HANNIS TAYLOE (1SS9) 

Side by side with Eliot, Coke, and Phelips now stood Sir 
Thomas Wentworth, who did yeoman's service in the popular 
cause in a great oration in which, after reviewing all the questions 
in controversy, except those involving the subject of religion, he 
demanded that there should be no more forced loans, no more 
illegal imprisonments, no more compulsory employments abroad, 
no billeting of soldiers without the assent of the householder, — 
thus outlining the substance of the great statute, afterwards 
known as the Petition of Right, which derived its form from 
Coke. 

Hannis Tatlor, Origin and Growth of the English Constitution. II. 268. 



76 PETITION OF RIGHT [Ch. VI 

RUDOLF VON G-NEIST (1889) 

The Petition of Right is treated in later Constitutional State 
Law as a third Magna Charta, because by it a whole series of 
glaring administrative abuses are declared illegal in the most 
unequivocal terms. 

Rudolf von Gneist, History of the English Parliament. 253. 
GARDINER (1889) 

The Petition of Right is memorable as the first statutory 
restriction of the powers of the Crown since the accession of 
the Tudor dynasty. Yet, though the principles laid down in 
it had the widest possible bearing, its remedies were not 
intended to apply to all questions which had arisen or might 
arise between the Crown and the Parliament, but merely to 
those which had arisen since Charles's accession. Parliament 
had waived, for the present at least, the consideration of Buck- 
ingham's misconduct. It had also waived the consideration of 
the question of Impositions. 

The motives of the Commons in keeping silence on the Im- 
positions were probably twofold. In the first place, they pro- 
bably wished to deal separately with the new grievances, 
because in dealing with them they would restrain the King's 
power to make war without Parliamentary consent. In the 
second place, they had a Tonnage and Poundage Bill before 
them. Such a Bill had been introduced into each of the pre- 
ceding Parliaments, but in each case an early dissolution had 
hindered its consideration, and the long debates on the Petition 
of Right now made it impossible to proceed farther with it in 
the existing session. Yet, for three years the King had been 
collecting Tonnage and Poundage, just as he collected the 
Impositions, that is to say, as if he had no need of a Parlia- 
mentary grant. The Commons therefore proposed to save the 
right of Parliament by voting Tonnage and Poundage for a 
single year, and to discuss the matter at length the following 
session. When the King refused to accept this compromise 
they had some difficulty in choosing a counter-move. They 
were precluded from any argument from ancient statute and 
precedent, because the judges in Bates's case had laid down 



1827-1890] CRITICAL COMMENT 77 

the law against them, and they therefore had recourse to the 
bold assertion that the Petition of Right had settled the ques- 
tion in their favour. Charles answered by proroguing Parlia- 
ment, and took occasion in so doing to repudiate the doctrine 
which they advanced. 

Samuel R. Gardinek, The Constitutional Documents of the Puritan Revolu. 
tion. xxiii.-sxiv. 

J. K. HOSMER (1890) 

At first, feeble and fitful, the opposition gathered force, 
developing under Charles I. into a stern battle between King 
and that conservative element of the people who were deter- 
mined to uphold the ancient ways. The King was forced by 
the Petition of Right, in 1628, to admit that his arbitrary course 
was wrong. It was a profession of the lips, not the heart. 

J. K. HosMEE, Anglo-Saxon Freedom. 107. 



78 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Chapter VII 
ENGLISH WRITTEN CONSTITUTIONS (1648-1653) 

SUGGESTIONS 

During the year 1647, Oliver Cromwell tried his best to come to an 
understanding with King Charles T. A constitutional scheme known 
as the Heads of the Proposals was drawn up by Ireton, and presented 
in the name of the army to the King. The wisdom of the Proposals 
was not accepted, and many of the agitators, finding that the king 
grew more hostile to Oliver Cromwell andhis party, advanced a stiU 
more democratic constitution known as the Agreement of the People. 
This document was presented to Parliament, and an attempt to force 
it upon the officers was made with threats of mutiny in the army if 
not accepted. But the immediate action on the part of the King at 
this time turned the thoughts of the agitators, as well as the whole 
body of the army, from constitutional law to royal intelligence. The^ 
army lost all patience with King and Parliament. The Agreement 
of the People was set aside, and all thoughts were turned to the atten- 
tion of the King. 

The new Constitution devised by Lambert and embodied in the In- 
strument of Government, was the document accepted by the council of 
officers who succeeded the " Little Parliament " as a legislative power. 
This council was driven by necessity to the step from which they had 
shrunk before, that of convening a parliament on the reformed basis of 
representation. The new Constitution was undoubtedly popular. The 
" Instrument " was taken as the ground work of the new Constitu- 
tion, and the Assembly proceeded at once to settle the Government on 
a parliamentary basis, by discussing the document clause by clause. 

The two documents here presented were neither of them operative, 
but they are here inserted because they are early attempts to draw 
up written constitutions for England, with limitations, checks, and 
balances ; and because their underlying ideas were carried out in some 
colonial charters and governments, and eventually reappeared in the 
state and federal constitutions. 

For Outlines and Material, see Appendix A, 



1648-1653] TEXT 79 

DOCUMENTS 

The Agreement of the People (1649) 

An Agreement of the People of England, and the Transliter- , 
Places therewith incorporated, for a secure and ^f^t^^^ 

-r. 7 J- n • 7 -* "6 Farlia- 

preseiit Peace, upon grounds oj common Jiight, mentanj His- 

Freedom, and Safety. tory of Eng- 

land. (Han- 
Having, by our late labours and hazards, made sard, 1808), 

it appear to the world at how high a rate we value loTO 
our just freedom ; and God having so far owned 
our cause as to deliver the enemies thereof into our 
hands, we do now hold ourselves bound, in mutual 
duty to each other, to take the best care we can 
for the future, to avoid both the danger of return- 
ing into a slavish condition and the chargeable 
remedy of another war : for as it cannot be ima- 
gined that so many of our countrymen would have 
opposed us in this quarrel if they had understood 
their own good, so may we hopefully promise to 

ourselves, that when our common riglits and liber- ^|^® spirit of 
1 , . 7 -HIT liberty, car- 

ties shall be cleared, then- endeavours will be dis- rjed even to 

appointed that seek to make themselves our masters, the sword. 
Since therefore our former oppressions and not-yet- 
ended troubles have been occasioned either by 
want of frequent national meetings in council, or 
by the undue or unequal constitution thereof, or by Infrequency 
rendering those meetings ineffectual, we are fully ^g^ts^beg^n 
agreed and resolved, God willing, to provide, that in the Tudor 
hereafter our Representatives be neither left to an ^^l^^^ ^^* 
uncertainty for times nor be unequally constituted, amazingly in- 
nor made useless to the ends for which they are creased dur- 
,,-.-77 J 71 1 mS reisrn of 

intended. In order whereunto we declare and agree, jamesl. 

First. That, to prevent the many inconveniences 
apparently arising from the long continuance of 
the same persons in supreme authority, this present 
Parliament end and dissolve upon, or before, the 
last day of April, 1649. 

Secondly. That the people of England (being 



80 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Note use of 
word Eepre- 
sentatives; 
later adopted 
by the Fed- 
eral conven- 
tion, 1787. 



The list of 
districts is 
here omitted. 



The Legis- 
lative Body. 



at this day very unequally distributed by counties, 
cities, and boroughs, for the election of their Rep- 
resentatives) be indifferently proportioned ; and, to 
this end, that the Representative of the whole 
nation shall consist of 400 persons, or not above ; 
and in each county, and the places thereto sub- 
joined, there shall be chosen, to make up the said 
Representative at all times, the several numbers 
here mentioned, viz.: . . . and, having first caused 
this Agreement to be publicly read in the audience 
of the people, shall proceed unto, and regulate and 
keep peace and order in the elections; and, by 
poll or otherwise, openly distinguish and judge of 
the same; and thereof, by certificate or writing 
under the hands and seals of himself, and six or 
more of the electors, nominating the person or 
persons duly elected, shall make a true return into 
the Parliament Records within twenty-one days 
after the election, under pain for default thereof, 
or, for making any false return, to forfeit £100 
to the public use ; and also cause indentures to be 
made, and unchangeably sealed and delivered, be- 
tween himself and six or more of the said electors, 
on the one part, and the persons, or each person, 
elected severally, on the other part, expressing 
their election of him as a representer of them ac- 
cording to this Agreement, and his acceptance of 
that trust, and his promise accordingly to perform 
the same with faithfulness, to the best of his un- 
derstanding and ability, for the glory of God and 
good of the people. This course is to hold for the 
first Representative, which is to provide for tlie 
ascertaining of these circumstances in order to 
future representatives. 

Fourthly. That 150 members at least be always 
present in each sitting of the Representative, at 
the passing of any law or doing of any act whereby 
the people are to be bound ; saving, that the num- 
ber of sixty may make a House for debates or 
resolutions that are preparatoi-y thereunto. 



1648-1653] 



TEXT 81 



Fifthly. That each Representative shall, within 
20 days after their first meeting, appoint a Council 
of State for the managing of public affairs, until tive Body, 
the 10th clay after the meeting of the next Represen- 
tative, unless that next Representative think fit 
to put an end to that trust sooner. And the same 
Council to act and proceed therein, according to 
such instructions and limitations as the Representa- 
tive shall give, and not otherwise. 

Sixthly. That in each interval between biennial 

representatives, the Council of State, in case of Extra Ses- 

, T . . . sions limited 

immmeut danger or extreme necessity, may sum- ^^ extent of 

mon a Representative to be forthwith chosen, and time, 
to ineet ; so as the Session thereof continue not 
above eighty dajj-s ; and so as it dissolve at least 
fifty days before the appointed time for the next 
biennial Representative ; and upon the fiftieth day 
so preceding it shall dissolve of course, if not other- 
wise dissolved sooner. 

Seventhly. That no member of any Represen- Modern doc- 
tative be made either receiver, treasurer, or other J^uon 0?*"'^^' 
officer, during that employment, saving to be a powers, 
member of the Council of State. 

Eio-hthly. That the representatives have, and 
shall be understood to have, the supreme trust in 
order to the preservation and government of the 
whole; and that their power extend, without the 
consent or concurrence of any other person or per- 
sons, to the erecting and abolishing of Courts of 
Justice and public offices, and to the enacting, 
altering, repealing and declaring of laws, and the 
highest and final judgment, concerning all natural 
or civil things, but not concerning things spiritual 
or evangelical. Provided that, even in things na- Duties of the 
tural and civil, these six particulars next following JJves defined 
are, and shall be, understood to be excepted and respecting 
reserved from our representatives, viz. 1. We do P^'^l^'^ ^^^i^^- 
not empower them to impress or constrain any 
person to serve in foreign war, either by sea or 

6 



82 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

land, nor for any military service within the king- 
dom ; save that they may take order for the form- 
ing, training, and exercising of the people in a 
military way, to be in readiness for resisting of 
foreign invasions, suppressing of sudden insurrec- 
tions, or for assisting in execution of the laws ; 
and may take order for the employing and con- 
ducting of them for those ends ; provided that, 
even in such cases, none be compellable to go out 
of the county he lives in, if he procure another to 
serve in his room. 2. That, after the time herein 
limited for the commencement of the First Eepre- 
sentative, none of the people may be at any time 
questioned for an3'thing said or done in relation to 
the late wars or public differences, otherwise than 
in execution or pursuance of the determinations 
of the present House of Commons, against such 
as have adhered to the King, or his interest, against 
the people ; and saving that accomptants for pub- 
lic moneys received, shall remain accountable for 
Perpetuity of the same. 3. That no securities given, or to be 
the country's given, b}^ the public faith of the nation, nor any 
" ' engagements of the public faith for satisfaction 

of debts and damages, shall be made void or in- 
valid by the next or any future Representatives ; 
except to such creditors as have, or shall have, 
justly forfeited the same : and saving, that the next 
Representative may confirm or make null, in part 
or in whole, all gifts of lands, moneys, offices, or 
otherwise, made by the present Parliament to any 
member or attendant of either House. 4. That, 
in any laws hereafter to be made, no person, by 
virtue of any tenure, grant, charter, patent, degree 
or birth, shall be privileged from subjection there- 
to, or from being bound thereby, as well as others. 
Dignity of 5. That the Representative may not give judgment 
Common upon any man's person or estate, where no law 
hath before provided; some only in calling to ac- 
count and punishing public officers for abusing or 



1648-1653] TEXT 83 

failing in their trust. 6. That no Representative 
may in any wise render up, or give, or take away, 
any of the foundations of common right, liberty, 
and safety contained in this Agreement, nor level 
men's estates, destroy property, or make all things 
common; and that, in all matters of such funda- 
mental concernment, there shall be a liberty to 
particular members of the said representatives to 
enter their dissents from the major vote. 

Ninthly. Concerning religion, we agree as fol- 
loweth. 1. It is intended that the Christian Reli- Relation of 
gion be held forth and recommended as the public ^ govern- 
profession in this nation, which we desire may, by Christian 
the grace of G-od, be reformed to the greatest purity Religion, 
in doctrine, worship and discipline, according to 
the "Word of God ; the instructing the people there- 
unto in a public way, so it be not compulsive ; as 
also the maintaining of able teachers for that end, 
and for the confutation or discovering of heresy, 
error, and whatsoever is contrary to sound doctrine, 
is allowed to be provided for by our Representa- 
tives ; the maintenance of which teachers may be 
out of a public treasury, and, we desire, not by 
tithes : provided, that Popery or Prelacy be not 
held forth as the public way or profession in this 
nation. 2. That, to the public profession so held 
forth, none be compelled by penalties or otherwise ; 
but only may be endeavoured to be won by sound 
doctrine, and the example of a good conversation. 
3. That such as profess faith in God by Jesus 
Christ, however differing in judgment from the 
doctrine, worship or discipline publicly held forth, 
as aforesaid, shall not be restrained from, but shall 
be protected in, the profession of their faith and 
exercise of religion, according to their consciences, 
in any place except such as shall be set apart for 
the public worship ; where we provide not for them, 
unless they have leave, so as they abuse not this 
liberty to the civil injury of others, or to act- 



84 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Exclusion of 
Roman Cath- 
olic church. 



To prevent 

military 

despotism. 



ual disturbance of the public peace on their parts. 
Nevertheless, it is not intended to be hereby pro- 
vided, that this liberty shall necessarily extend to 
Popery or Prelacy. 4. That all laws, ordinances, 
statutes, and clauses in any law, statute, or ordi- 
nance to the contrary of the liberty herein provided 
for, in the two particulars next preceding concern- 
ing religion, be, and are hereby, repealed and made 
void. 

Tenthly. It is agreed, that whosoever shall, by 
force of arms, resist the orders of the next or any 
future Representative (except in ease where such 
Representative shall evidently render up, or give, 
or take away the foundations of common right, 
liberty, and safety, contained in this Agreement), 
he shall forthwith, after his or their such resistance, 
lose the benefit and protection of the laws, and shall 
be punishable with death, as an enemy and traitor to 
the nation. Of the things expressed in this Agree- 
ment : the certain ending of this Parliament, as in 
the first Article ; the equal or proportionable distri- 
bution of the number of the representers to be 
elected, as in the second ; the certainty of the 
people's meeting to elect for Representatives 
biennial, and their freedom in elections ; with the 
certainty of meeting, sitting and ending of Repre- 
sentatives so elected, which are provided for in the 
third Article ; as also the qualifications of persons 
to elect or be elected, as in the first and second 
particulars under the third Article ; also the cer- 
tainty of a number for passing a law or preparatory 
debates, provided for in the fourth Article; the 
matter of the fifth Article, concerning the Council 
of State, and of the sixth, concerning the calling, 
sitting and ending of Representatives extraordinary; 
also the power of Representatives to be, as in the 
eighth Article, and limited, as in the six reserves 
next following the same: likewise the second and 
third Particulars under the ninth Article concerning 



1648-1653] TEXT 85 

religion, aud the whole matter of the tenth Article ; 
all these we do account and declare to be funda- 
mental to our common right, liberty, and safety : 
and therefore do both agree thereunto, and resolve 
to maintain the same, as God shall enable us. 
The rest of the matters in this Agreement we ac- 
count to be useful and good for the public ; and the 
particular circumstances of numbers, times, and 
places, expressed in the several Articles, we account This docu- 

not fundamental : but we find them necessarv to be ™6nt was 
, ,^ ■ ^ n V, 1- , 1 completed on 

here determined, lor the makmg the Agreement Jan. 15, 1649, 

certain and practicable, and do hold these most ^^'^ P^'^- 

convenient that are here set down ; and therefore Rump par- 

do positively agree thereunto. By the appointment liament five 

of his Excellency the Lord-General and his General ^^^^ ^^*^'^* 

Council of Officers. 

John Rushworth, Sec. 



The Instrument of Government (1653) 

The government of the Commonwealth of Eng- Translit.: 

land, Scotland, and Ireland, and the dominions {j.^Ji, 
' ' ' Hist, of Eng. 

thereunto belonging. (Hansard, 

I. That the supreme legislative authority of the J^?^^'. JJJ* 

Commonwealth of England, Scotland, and Ireland, . ^.^. ' . 
=' ' ' ' An attempt 

and the dominions thereunto belonging, shall be to establish 
and reside in one Person, and the people assembled ^^ executive 

on fi f*onsti— 

in Parliament ; the style of which person shall be the tutional and 
Lord Protector of the Commonwealth of England, not a military 
Scotland, and Ireland. ^^^'®' 

II. That the exercise of the chief Magistracy The council 

and the administration of the government over the ^^®?'^^.^?'i, 

== pointed by 

said countries and dominions, and the people there- the Pro- 
of, shall be in the Lord Protector, assisted with a tector, but 

w6rG irrG- 
council, the number whereof shall not exceed 21, movable by 

nor be less than 13. him save by 

III. That all writs, processes, commissions, ^.j^g ^^^^ ^^ 
patents, grants, and other things, which now run in the members, 
the name and style of the ' Keepers of the Liberty 



86 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Commander- 
in-chief of 
army and 
navy by con- 
sent of 
Council. 



Interna- 
tional rela- 
tionship with 
advice of 
Council. 



Note Com- 
mon Law 
and Magna 
Charta. 



Triennial 
summons of 
a single 
chamber of 
Parliament. 



of England by Authority of Parliament,' shall run 
in the name and style of the Lord Protector, from 
whom, for the future, shall be derived all magistracy 
and honours in these three nations ; and have the 
power of pardons (except in case of murders and 
treason) and benefit of all forfeitures for the public 
use ; and shall govern the said countries and domin- 
ions in all things by the advice of the council, and 
according to these presents and the laws. 

IV. That the Lord Protector, the Parliament sit- 
ting, shall dispose and order the militia and forces, 
both by sea and land, for the peace and good of the 
three nations, by consent of Parliament ; and that 
the Lord Protector, with the advice and consent of 
the major part of the council, shall dispose and 
order the militia for the ends aforesaid in the inter- 
vals of Parliament. 

V. That the Lord Protector, by the advice afore- 
said, shall direct in all things concerning the keeping 
and holding of a good correspondency with foreign 
kings, princes, and states; and also, with the con- 
sent of the major part of the council, have the 
power of w^ar and peace. 

VI. That the laws shall not be altered, suspended, 
abrogated, or repealed, nor any new law made, nor 
any tax, charge, or imposition laid upon the people, 
but by common consent in Parliament, save only as 
is expressed in the thirtieth article. 

VII. That there shall be a Parliament summoned 
to meet at Westminster upon the third day of Sep- 
tember, 1654, and that successively a Parliament 
shall be summoned once in every third year, to be 
accounted from the dissolution of the present 
Parliament. 

VIII. That neither the Parliament to be next 
summoned, nor any successive Parliaments, shall, 
during the time of five months, to be accounted 
from the day of their first meeting, be adjourned, 
prorogued, or dissolved, without their own consent. 



1648-1653] TEXT 8T 

IX. That as well the next as all other successive 
Parliaments, shall be summoned and elected in 
manner hereafter expressed; that is to say, the 
persons to be chosen within England, Wales, the 
Isles of Jersey, Guernsey, and the town of Berwick- 
upon-Tweed, to sit and serve in Parliament, shall 
be, and not exceed, the number of four hundred. 
The persons to be chosen within Scotland, to sit 
and serve in Parliament, shall be, and not exceed, 
the number of thirty ; and the persons to be chosen 
to sit in Parliament for Ireland shall be, and not 
exceed, the number of thirty. 

X. That the persons to be elected to sit in Parlia- 
ment from time to time, for the several counties of 
England, Wales, the Isles of Jersey and Guernsey, 
and the town of Berwick-upon-Tweed, and all places 
within the same respectively, shall be according to 
the proportions and numbers hereafter expressed : 

that is to say, . . . The list is 

XL That the summons to Parliament shall be by The ordi- 

writ under the Great Seal of England, directed to nances of 

the sheriffs of the several and respective counties, ^ent are the 

with such alteration as may suit with the present sole attempt, 

government, to be made by the Lord Protector ^^J^^'j^^Jj;;;.^,^^ 

and his council, which the Chancellor, Keeper, or at a general 

Commissioners of the Great Seal shall seal, issue, reform of the 

1 T T -r^ parliamen- 
and send abroad by warrant from the Lord Pro- tary fran- 

tector. If the Lord Protector shall not give warrant chise, until 
for issuing of writs of summons for the next Parlia- Reform Bill 
ment, before the first of June, 1654, or for the of 1832. 
Triennial Parliaments, before the first day of August gee Sum- 
in every third year, to be accounted as aforesaid ; mons to 

Parliament 
that then the Chancellor, Keeper, or Commissioners ci^ap. III. 

of the Great Seal for the time being, shall, without 
any warrant or direction, within seven days after 
the said first day of June, 1654, seal, issue, and 
send abroad writs of summons (changing therein 
what is to be changed as aforesaid) to the several 
and respective sheriffs of England, Scotland, and 



summoning. 



88 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

Ireland, for summoning the Parliament to meet at 
Westminster, the third day of September next; 
and shall likewise, within seven days after the said 
first day of August, in every third year, to be ac- 
counted from the dissolution of the precedent Parlia- 
ment, seal, issue, and send forth abroad several 
writs of summons (changing therein what is to be 
changed) as aforesaid, for summoning the Parlia- 
ment to meet at Westminster the sixth of Novem- 
Manner of her in that third year. That the said several and 
respective sheriffs, shall, within ten days after the 
receipt of such writ as aforesaid, cause the same to 
be proclaimed and published in every market-town 
within his county upon the market-days thereof, 
between twelve and three of the clock; and shall 
then also publish and declare the certain day of the 
week and month, for choosing members to serve in 
Parliament for the body of the said county, accord- 
ing to the tenor of the said writ, which shall be 
upon Wednesday five weeks after the date of the 
writ; and shall likewise declare the place where the 
election shall be made ; for which purpose he shall 
appoint the most convenient place for the whole 
county to meet in; and shall send precepts for 
elections to be made in all and every city, town, 
borough, or place within his county, where elections 
are to be made by virtue of these presents, to the 
Mayor, Sheriff, or other head officer of such city, 
town, borough, or place, within three days after the 
receipt of such writ and writs; which the said 
Mayors, Sheriffs, and officers respectively are to 
make publication of, and of the certain day for 
such elections to be made in the said city, town, or 
place aforesaid, and to cause elections to be 
made accordingly. 

XII. That at the day and place of elections, the 
Sheriff of each countj^, and the said Mayors, Sheriffs, 
Bailiffs, and other head officers within their cities, 
towns, boroughs, and places respectively, shall take 



1648-1653] TEXT 89 

%dew of the said elections, and shall make return 
into the chancery within twenty days after the said 
elections, of the persons elected by the greater 
number of electors, under their hands and seals, 
between him on the one part, and the electors on 
the other part ; wherein shall be contained, that the 
persons elected shall not have power to alter the 
government as it is hereby settled in one single 
person and a Parliament. 

XIII. That the Sheriff, who shall wittingly and 
willingly make any false return, or neglect his duty, punishment 
shall incur the penalty of 2000 marks of lawful for illegal- 
English money ; the one moiety to the Lord Pro- ^*'^®®" 
tector, and the other moiety to such person as will 

sue for the same. 

XIV. That all and every person and persons, 

who have aided, advised, assisted, or abetted in any Disloyalty in 
war against the Parliament, since the first day of England. 
January, 1641 (unless they have been since in the 
service of the Parliament, and given signal testi- 
mony of their good affection thereunto) shall be 
disabled and incapable to be elected, or to give 
any vote in the election of any members to serve in 
the next Parliament, or in the three succeeding 
Triennial Parliaments. 

XV. That all such, who have advised, assisted, 

or abetted the rebellion of Ireland, shall be disabled Disloyalty in 
and incapable for ever to be elected, or give any Ireland, 
vote in the election of any member to serve in Par- 
liament ; as also all such who do or shall profess the Eoman Cath- 
Roman Catholic religion. ol^c religion. 

XVI. That all votes and elections given or made 
contrary, or not according to these qualifications, 
shall be null and void ; and if any person, who is 
hereby made incapable, shall give his vote for elec- 
tion of members to serve in Parliament, such person 
shall lose and forfeit one full year's value of his real 
estate, and one full third part of his personal estate ; 
one moiety thereof to the Lord Protector, and the 



90 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Eligibility 
of represen- 
tatives. 



Electorate. 



The Parlia- 
ment gath- 
ered together 
in 1654 
under the 
mandate of 
this frame of 
government 
brought to- 
gether for 
the first time 
representa- 
tives fx'om 
England, 
Scotland, and 
Ireland, in 
the form in 
which they 
sit to-day. 



other moiety to him or them who shall sue for the 
same. 

XVII. That the persons who shall be elected to 
serve in Parliament, shall be such (and no other 
than such) as are persons of known integrity, fear- 
ing God, and of good conversation, and being of 
the age of twenty-one years. 

XVIII. That all and every person and persons 
seised or possessed to his own use, of any estate, 
real or personal, to the value of £200, and not 
within the aforesaid exceptions, shall be capable to 
elect members to serve in Parliament for counties. 

XIX. That the Chancellor, Keeper, or Commis- 
sioners of the Great Seal, shall be sworn before 
they enter into their offices, truly and faithfully to 
issue forth, and send abroad, writs of summons to 
Parliament, at the times and in the manner before 
expressed : and in case of neglect or failure to issue 
and send abroad writs accordingly, he or they shall 
for every such offence be guilty of high treason, and 
suffer the pains and penalties thereof. 

XX. That in case writs be not issued out, as is 
before expressed, but that there be a neglect therein, 
fifteen days after the time wherein the same ought 
to be issued out by the Chancellor, Keeper, or Com- 
missioners of the Great Seal ; that then the Parlia- 
ment shall, as often as such failure shall happen, 
assemble and be held at Westminster, in the usual 
place, at the times prefixed, in manner and by the 
means hereafter expressed; that is to say, that 
the sheriffs of the several and respective counties, 
sheriffdoms, cities, boroughs, and places aforesaid, 
within England, Wales, Scotland, and Ireland, the 
Chancellor, Masters, and Scholars of the Univer- 
sities of Oxford and Cambridge, and the Mayor and 
Bailiffs of the borough of Berwick-upon-Tweed, and 
other places aforesaid respectively, shall at the 
several courts and places to be appointed as afore- 
said, within thirty days after the said fifteen days, 



1648-1653] TEXT 91 

cause such members to be chosen for their said 
several and respective counties, sheriffdoms, univer- 
sities, cities, boroughs, and places aforesaid, by such 
persons, and in such manner, as if several and re- 
spective writs of summons to Parliament under the 
Great Seal had issued and been awarded according 
to the tenor aforesaid : that if the sheriff, or other 
persons authorized, shall neglect his or their duty 
herein, that all and every such sheriff and person 
authorized as aforesaid, so neglecting his or their 
duty, shall, for every such offence, be guilty of high 
treason, and shall suffer the pains and penalties 
thereof. 

XXI. That the clerk, called the clerk of the Com- Qualifica- 
mon wealth in Chancery for the time being, and all ^^^"^ article, 
others, who shall afterwards execute that office, to 

whom the returns shall be made, shall for the next 
Parliament, and the two succeeding Triennial Par- 
liaments, the next day after such return, certify the 
names of the several persons so returned, and of '' 

the places for which he and they were chosen re- 
spectively, unto the Council ; who shall peruse the 
said returns, and examine whether the persons so 
elected and returned be such as is agreeable to the 
qualifications, and not disabled to be elected : and 
that every person and persons being so duly elected, 
and being approved of by the major part of the 
Council to be persons not disabled, but qualified as 
aforesaid, shall be esteemed a member of Parlia- 
ment, and be admitted to sit in Parliament, and not 
otherwise. 

XXII. That the persons so chosen and assembled 
in manner aforesaid, or any sixty of them, shall be, 
and be deemed the Parliament of England, Scotland, 
and Ireland ; and the supreme legislative power to 
be and reside in the Lord Protector and such Par- 
liament, in manner herein expressed. 

XXIII. That the Lord Protector, with the advice 
pf the major part of the Council, shall at any other 



92 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



The Protec- 
tor's ordain- 
ing power. 



Prototype of 
tlie Massa- 
cliusetts Con- 
stitution of 
1780 and 
Federal Con- 
stitution of 
1787. 



Method of 

choosing 

Council. 



time than is before expressed, when the necessities 
of the State shall require it, summon Parliaments in 
manner before expressed, which shall not be ad- 
journed, prorogued, or dissolved without their own 
consent, during the first three months of their sit- 
ting. And in case of future war with any foreign 
State, a Parliament shall be forthwith summoned for 
their advice concerning the same. 

XXIV. That all Bills agreed unto by the Parlia- 
ment, shall be presented to the Lord Protector for 
his consent ; and in case he shall not give his con- 
sent thereto within twenty days after they shall be 
presented to him, or give satisfaction to the Parlia- 
ment within the time limited, that then, upon dec- 
laration of the Parliament that the Lord Protector 
hath not consented nor given satisfaction, such BUls 
shall pass into and become laws, although he shall 
not give his consent thereunto ; provided such Bills 
contain nothing in them contrary to the matters 
contained in these presents. 

XXV. That Henry Lawrence, Esq., &c., or any 
seven of them, shall be a Council for the purposes 
expressed in this writing: and upon the death or 
other removal of any of them, the Parliament shall 
nominate six persons of ability, integrity, and 
fearing God, for every one that is dead or removed ; 
out of which the major part of the Council shall 
elect two, and present them to the Lord Protector, 
of which he shall elect one ; and in case the Parlia- 
ment shall not nominate within twenty days after 
notice given unto them thereof, the major part of 
the Council shall nominate three as aforesaid to the 
Lord Protector, who out of them shall supply the 
vacancy ; and until this choice be made, the remain- 
ing part of the Council shall execute as fully in all 
things, as if their number were full. And in case 
of corruption, or other miscarriage in any of the 
Council in their trust, the Parliament shall appoint 
seven of their number, and the Council six, who, 



1648-1653] TEXT 93 

together with the Lord Chancellor, Lord Keeper, or 
Commissioners of the Great Seal for the time being, 
shall have power to hear and determine such 
corruption and miscarriage, and to award and in- 
flict punishment, as the nature of the offence shall 
deserve, which punishment shall not be pardoned or 
remitted by the Lord Protector; and, in the inter- 
val of Parliaments, the major part of the Council, 
with the consent of the Lord Protector, may, for 
corruption or other miscarriage as aforesaid, sus- 
pend any of their number from the exercise of their 
trust, if they shall tind it just, until the matter shall 
be heard and examined as aforesaid. 

XXVI. That the Lord Protector and the major 
part of the Council aforesaid may, at any time 
before the meeting of the next Parliament, add to 
the Council such persons as they shall think fit, 
provided the number of the Council be not made 
thereby to exceed twenty-one, and the quorum to be 
proportioned accordingly by the Lord Protector and 
the major part of the Council. 

XXVII. That a constant yearly revenue shall be 

raised, settled, and established for maintaining of The Protec- 
10,000 horse and dragoons, and 20,000 foot, in borate sup- 
England, Scotland and Ireland, for the defence and a military 
security thereof, and also for a convenient number force, 
of ships for guarding of the seas ; besides £200,000 
per annum for defraying the other necessary charges 
of administration of justice, and other expenses of 
the G-overnment, which revenue shall be raised by 
the customs, and such other ways and means as 
shall be agreed upon by the Lord Protector and the 
Council, and shall not be taken away or diminished, 
nor the way agreed upon for raising the same 
altered, but by the consent of the Lord Protector 
and the Parliament. 

XXVIII. That the said yearly revenue shall be System of 
paid into the public treasury, and shall be issued auditors 
out for the uses aforesaid. dates from 



94 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Lessening 
power of 
the Army. 



Control of 
finances in 
hands of 
Parliament. 



Forfeitures. 



XXIX. Tliat in case there shall not be cause 
hereafter to keep up so great a defence both at land 
or sea, but that there be an abatement made thereof, 
the money which will be saved thereby shall remain 
in bank for the public service, and not be employed 
to any other use but by consent of Parliament, or, 
in the intervals of Parliament, by the Lord Protec- 
tor and major part of the Council. 

XXX. That the raising of money for defraying 
the charge of the present extraordinary forces, 
both at sea and land, in respect of the present wars, 
shall be by consent of Parliament, and not other- 
wise: save only that the Lord Protector, with the 
consent of the major part of the Council, for pre- 
venting the disorders and dangers which might 
otherwise fall out both by sea and land, shall have 
power, until the meeting of the first Parliament, to 
raise money for the purposes aforesaid; and also 
to make laws and ordinances for the peace and wel- 
fare of these nations where it shall be necessary, 
which shall be binding and in force, until order 
shall be taken in Parliament concerning the 
same. 

XXXI. That the lands, tenements, rents, royal- 
ties, jurisdictions and hereditaments which remain 
yet unsold or undisposed of, by Act or Ordinance 
of Parliament, belonging to the Commonwealth 
(except the forests and chases, and the honours and 
manors belonging to the same ; the lands of the 
rebels in Ireland, lying in the four counties of 
Dublin, Cork, Kildare, and Carlow; the lands 
forfeited by the people of Scotland in the late wars, 
and also the lands of Papists and delinquents in 
England who have not yet compounded), shall be 
vested in the Lord Protector, to hold, to him and 
his successors, Lords Protectors of these nations, 
and shall not be alienated but by consent in Parlia- 
ment. And all debts, fines, issues, amercements, 
penalties and profits, certain and casual, due to the 



1648-1653] TEXT 95 

Keepers of the liberties of England by authority of 
Parliament, shall be due to the Lord Protector, and 
be payable into his public receipt, and shall be 
recovered and prosecuted in his name. 

XXXII. That the office of Lord Protector over 

these nations shall be elective and not hereditary ; Article of 
and upon the death of the Lord Protector, another Succession : 
fit person shall be forthwith elected to succeed him not heredi- 
in the Government ; which election shall be by the t^^T ruler. 
Council, who, immediately upon the death of the Manner of 
Lord Protector, shall assemble in the Chamber 
where the}' usually sit in Council ; and, having given 
notice to all their members of the cause of their 
assembling, shall, being thirteen at least present, 
proceed to the election ; and, before they depart the 
said Chamber, shall elect a fit person to succeed in 
the Government, and forthwith cause proclamation 
thereof to be made in all the three nations as shall 
be requisite ; and the person that they, or the major 
part of them, shall elect as aforesaid, shall be, and 
shall be taken to be, Lord Protector over these 
nations of England, Scotland and Ireland, and the 
dominions thereto belonging. Provided that none 
of the children of the late King, nor any of his line 
or family, be elected to be Lord Protector or other 
Chief Magistrate over these nations, or any the 
dominions thereto belonging. And until the afore- 
said election be past, the Council shall take care 
of the Government, and administer in all things 
as fully as the Lord Protector, or the Lord Pro- 
tector and Council are enabled to do. 

XXXIII. That Oliver Cromwell, Captain-General 

of the forces of England, Scotland and Ireland, Oliver Crom- 
shall be, and is hereby declared to be, Lord Pro- J^^"' Protec- 
tector of the Commonwealth of England, Scotland 
and Ireland, and the dominions thereto belonging, 
for his life. 

XXXIV. That the Chancellor, Keeper or Com- 
missioners of the Great Seal, the Treasurer, 



96 



ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 



Tolerance of 
Religion. 



Intolerance 

toward 

Roman 

Catholicism. 



Spirit of 
freedom. 



Admiral, Chief Governors of Ireland and Scotland, 
and the Chief Justices of both the Benches, shall be 
chosen by the approbation of Parliament; and, in 
the intervals of Parliament, by tlie approbation of 
the major part of the Council, to be afterwards 
approved by the Parliament. 

XXXV. That the Christian religion, as contained 
in the Scriptures, be held forth and recommended 
as the public profession of these nations ; and that, 
as soon as may be, a provision, less subject to 
scruple and contention, and more certain than the 
present, be made for the encouragement and main- 
tenance of able and painful teachers, for the in- 
structing the people, and for discovery and 
confutation of error, hereby, and whatever is con- 
trary to sound doctrine ; and until such provision be 
made, the present maintenance shall not be taken 
away or impeached. 

XXXVI. That to the public profession held 
forth none shall be compelled by penalties or other- 
wise ; but that endeavours be used to win them 
by sound doctrine and the example of a good 
conversation. 

XXXVII. That such as profess faith in God by 
Jesus Christ (though differing in judgment from the 
doctrine, worship or discipline publicly held forth) 
shall not be restrained from, but shall be protected 
in, the profession of the faith and exercise of their 
religion ; so as they abuse not this liberty to the 
civil injury of others and to the actual disturbance 
of the public peace on their parts : provided this 
liberty be not extended to Popery or Prelacy, nor 
to such as, under the profession of Christ, hold 
forth and practise licentiousness. 

XXXVIII. That all laws, statutes and ordi- 
nances, and clauses in any law, statute or ordinance 
to the contrary of the aforesaid liberty, shall be 
esteemed as null and void. 

XXXIX. That the Acts and Ordinances of Par- 



1648-1653] TEXT 97 

liameut made for the sale or other disposition of 
the lands, rents and hereditaments of the late King, 
Queen, and Prince, of Archbishops and Bishops, 
&c.. Deans and Cliapters, the lands of delinquents 
and forest-lauds, or any of them, or of any other 
lands, tenements, rents and hereditaments belong- 
ing to the Commonwealth, shall nowise be impeached 
or made invalid, but shall remain good and firm ; 
and that the securities given by Act and Ordinance 
of Parliament for any sum or sums of money, by 
any of the said lands, the excise, or any other pub- 
lic revenue; and also the securities given by the 
public faith of the nation, and the engagement of 
the public faith for satisfaction of debts and dam- 
ages, shall remain firm and good, and not be made 
void and invalid upon any pretence whatsoever. 

XL. That the Articles given to or made with the 
enemy, and afterwards confirmed by Parliament, 
shall be performed and made good to the persons 
concerned therein ; and that such appeals as were 
depending in the last Parliament for relief concern- 
ing bills of sale of delinquent's estates, may be 
heard and determined the next Parliament, any 
thing in this writing or otherwise to the contrary 
notwithstanding. 

XLI. That every successive Lord Protector over 
these nations shall take and subscribe a solemn 
oath, in the presence of the Council, and such 
others as they shall call to them, that he will seek 
the peace, quiet and welfare of these nations, cause 
law and justice to be equally administered ; and 
that he will not violate or infringe the matters and 
tilings contained in this writing, and in all other 
things will, to his power and to the best of his 
understanding, govern these nations according to 
the laws, statutes and customs thereof. 

XLII. That each person of the Council shall, 
before they enter upon their trust, take and sub- 
scribe an oath, that they will be true and faithful 

7 



98 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

in their trust, according to the best of their knowl- 
edge ; and that in the election of every successive 
Lord Protector they shall proceed therein impar- 
tially, and do nothing therein for any promise, fear, 
favour or reward. 



CONTEMPORARY EXPOSITION 
OLIVER CROMWELL (1G53) 

I suppose the Summons that hath been instrumental to bring 
you hither gives you well to understand the occasion of your 
being here. Howbeit, I have something farther to impart to 
you, which is an Instrument drawn-up by the consent and 
advice of the principal Officers of the Army ; which is a little 
(as we conceive) more significant than the Letter of the Sum- 
mons. We have that here to tender you ; and somewhat like- 
wise to say fai'ther for our own exoneration : which we hope 
may be somewhat farther for your satisfaction. And withal 
seeing you sit here somewhat uneasily by reason of the scant- 
ness of the room and heat of the weather, I shall contract ray- 
self with respect thereunto. . . . 

" But indeed " that is contained in the Paper here in my hand, 
which will be offered presently to you to read. But having 
done that, we havQ done upon such ground of necessity as we 
have "now" declared, which was not a feigned necessity but 
a real, — " it did behove us," to the end we might manifest to 
the world the singleness of our hearts and our integrity who 
did these things, Not to grasp at the power ourselves, or keep it 
in military hands, no not for a day; but, as far as God enabled 
us with strength and abilitj^, to put it into the hands of Proper 
Persons that might be called from the several parts of the 
Nation. This necessity ; and I hope we may say for ourselves, 
this integrity of concluding to divest the Sword of all power in 
the Civil Administration, — hath been that that hath moved us 
to put You to this trouble ' ' of coming hither : " and having 
done that, truly we think we cannot, with the discharge of our 
own consciences, but offer somewhat to you on the devolving of 
the burden on your shoulders. It hath been the practice of 
others who have, voluntarily and out of a sense of duty, 



1653] CONTEMPORARY EXPOSITION 99 

divested themselves, and devolved the Government into new 
hands; I say, it hath been the practice of those that have 
done so ; it hath been practised, aud is very consonant to 
reason, to lay "down," together with their Authority, some 
Charge "how to emploj^ it," (as we hope we have done), and 
to press the duty " of employing it well: " concerning which 
we have a word or two to offer you. . . . 

I liave only this to add. The affairs of the Nation lying on 
our hands to be taken care of ; and we knowing that both the 
Affairs at Sea, the Armies in Ireland and Scotland, and the pro- 
viding of things for the preventing of inconveniences, and the 
answering of emergencies, did require that there should be no 
Interruption, but that care ought to be taken for these things ; 
and foreseeing likewise that before you could digest yourselves 
into such a method, both for place, time and other circum- 
stances, as you shall please to proceed in, some time would be 
required, — which the Commonwealth could not bear in respect 
to the managing of things: I have, within a week "past," 
set-up a Council of State, to whom the managing of aifairs is 
committed. Who, I may say, very voluntarily and freely, 
before they see how the issue of things will be, have engaged 
themselves in business; eight or nine of them being Members 
of the House that late was. — I say I did exercise that power 
which, I thought, was devolved upon me at that time ; to the 
end affairs might not have any interval " or interruption." 
And now when you are met, it will ask some time for the 
settling of your affairs and your way. And, " on the other 
hand," a clay cannot be lost, or "left vacant," but they must 
be in continual Council till you take farther order. So that the 
whole matter of their consideration also which regards them is 
at your disposal, as you shall see cause. And therefore I 
thought it my duty to acquaint you with thus much, to prevent 
distractions in your way : That things have been thus ordered ; 
that your affairs will " not stop, but" go on, " in the mean- 
while," — till you see cause to alter this Council ; they having 
no authority or continuance of sitting, except simply until you 
take farther order. 

Carltle, Life of Cromwell, First Speech to the Sixth Parliament. 111. 
43, 70. 



100 EISTGLISH WRITTEN CONSTITUTIONS [Ch. 711 



CRITICAL COMMENT 



HALLAM (1S27) 



They appointed a commission to consider the reformation of 
the law, in consequence of repeated petitions against many 
of its inconveniences and abuses ; who, though taxed of course 
with dilatoriness by the ardent innovators, suggested many 
useful improvements, several of which have been adopted in 
more regular times, though with too cautious delay. They 
proceeded rather slowly and reluctantly to frame a scheme 
for future parliaments ; and resolved that they should consist 
of 400, to be chosen in due proportion by the several counties, 
nearly upon the model suggested by Lilburne, and afterwards 
carried into effect by Cromwell. . . . 

It was now the deep policy of Cromwell to render himself the 
sole refuge of those who valued the laws, or the regular eccle- 
siastical ministry, or their own estates, all in peril from the 
mad enthusiasts who were in hopes to prevail. These he had 
admitted into that motley convention of one hundred and 
twenty persons, sometimes called Barebone's parliament, but 
more commonly the little parliament, on whom his council of 
officers pretended to devolve the government, mingling them 
with a sufficient proportion of a superior class whom he could 
direct. 

Henry Hallam, The Constitutional History of England. II. 241, 242, 243. 
MACAULAY (1849) 

The name of king was hateful to the soldiers. Some of 
them were indeed unwilling to see the administration in the 
hands of any single person. The great majority, however, 
were disposed to support their general as elective first magis- 
trate of a commonwealth, against all factions which might 
resist his authority ; but they would not consent that he should 
assume the regal title, or that the dignity, which was the just 
reward of his personal merit, should be declared hereditary in 
his family. All that was left to him was, to give to the new 
republic a constitution as like the constitution of the old 
monarchy as the army would bear. . . . 



1827-1898] CRITICAL COMMENT 101 

His plan bore from the first, a considerable resemblance to 
the old English constitution ; but in a few years, he thought it 
safe to proceed further, and to restore almost every part of the 
ancient system under new names and forms. The title of 
king was not revived, but the kingly prerogatives were intrusted 
to a lord high protector. The sovereign was called, not His 
Majesty, but His Highness. He was not crowned and anointed 
in Westminster Abbey, but was solemnly enthroned, girt with 
a sword of state, clad in a robe of purple, and presented with 
a rich Bible, in Westminster Hall. His office was not declared 
hereditary ; but he was permitted to name his successor. 

Thomas Babington Macaulay, History of England. I. 104. 

BAGEHOT (1872) 

The second period of the British Constitution begins with the 
accession of the House of Tudor, and goes down to 1688; it 
is in substance the history of the growth, development, and 
gradually acquired supremacy of the new great council. . . . 
The steps were many, but the energy was one — the growth of 
the English middle-class, using that word in its most inclusive 
sense, and its animation under the influence of Protestantism. 
... A still stronger anti-Papal spirit entered into the middle 
sort of Englishmen, and added to that force, fibre, and sub- 
stance which they have never wanted, an ideal warmth and 
fervour which they have almost always wanted. Hence the 
saying that Cromwell founded the English Constitution. Of 
course, in seeming, Cromwell's work died with him ; his 
dynasty was rejected, his republic cast aside ; but the spirit 
which culminated in him never sank again, never ceased to 
be a potent, though often latent and volcanic force in the 

country. 

Walter Bagehot, English Constitution. 282. 

J. R. GREEN (1874) 

The dissolution of the Convention replaced matters in the 
state in which its assembly had found them ; but there was 
still the same general anxiety to substitute some sort of legal 
rule for the power of the sword. The Convention had named 



102 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

during its session a fresh Council of State, and this body at 
once drew up, under the name of the Instrument of Grovernment, 
a remarkable Constitution, which was adopted by the Council 
of Officers. They were driven by necessity to the step from 
which they had shrunk before, that of convening a Parliament 
on the reformed basis of representation, though such a basis 
had no legal sanction. The House was to consist of four 
hundred members from England, thirty from Scotland, and 
thirty from Ireland. The seats hitherto assigned to small and 
rotten boroughs were transferred to larger constituencies, and 
for the most part to counties. All special rights of voting in 
the election of members were abolished, and replaced by a 
general right of suffrage, based on the possession of real or 
personal property to the value of two hundred pounds. Catho- 
lics and " Malignants " as those who had fought for the King 
were called, were excluded for the while from the franchise. 
Constitutionally all further organization of the form of govern- 
ment should have been left to this Assembly; but the dread of 
disorder during the interval of its election, as well as a long- 
ing for " settlement," drove the Council to complete their work 
by pressing the office of " Protector " upon Cromwell. . . . 
The powers of the new Protector indeed were strictly limited. 
Though the members of the Council were originally named by 
him, each member was irremovable save by consent of the rest: 
their advice was necessary in all foreign affairs, their consent 
in matters of peace and war, their approval in nominations to 
the great offices of state, or the disposal of the military or 
civil power. With this body too lay the choice of all future 
Protectors. To the administrative check of the Council was 
added the political check of the Parliament. Three years at 
the most were to elapse between the assembling of one Parlia- 
ment and another. Laws could not be made, nor taxes im- 
posed but by its authority, and after the lapse of twenty days 
the statutes it passed became laws even if the Protector's 
assent was refused to them. The new Constitution was un- 
doubtedly popular; and the promise of a real Parliament in a 
few months covered the want of any legal character in the new 
rule. The G-overnment was generally accepted as a provisional 
one, which could only acquire legal authority from the ratiflca- 



1827-1898] CRITICAL COMMENT 103 

tion of its acts in the coming session ; and the desire to settle 
it on such a Parliamentary basis was universal among the 
members of the new Assembly which met in the autumn at 
Westminster. 

J. R. Gkeen, Short History of the English People. 585, 586. 
TASWELL-LANGMEAD (1879) 

In this connection it has been observed, that the significance 
of the Commonwealth consists before all else in the fact that 
England for the first time in its history showed the world what 
a strong resolute government, freed from the fetters of the 
mediaeval parliamentary State, and a government which, in 
respect of broad views and absence of prejudice, was far in 
advance of its time, could achieve both without and within. 

T. P. Taswell-Langmead, English Constitutional History. 508. 
HANNIS TAYLOR (1889) 

As early as October, 1647, the levellers had embodied 
their new conception of government in the draft of a constitu- 
tion entitled " The Agreement of the People," which proposed, 
first, that the constituencies should be " more indifferently pro- 
portioned according to the number of inhabitants ; " second, 
that the existing parliament should be dissolved on September 
30, 1648 ; third, that all future parliaments should be triennial ; 
fourth, that a single elected chamber should be supreme in all 
things not " expressly or impliedly reserved by the represented 
to themselves." This prototype of all constitutions, state and 
federal, as they exist to-day in the United States, was to draw 
its authority from a direct acceptance by the people, who re- 
served to themselves, by express constitutional limitations 
upon the powers granted, certain rights, among which the 
agreement pointedly named the absolute right to religious liberty 
and due process of law. . . . 

The scheme of government embodied in the ' ' Instrument " 
undertook to impose a twofold limitation upon the powers of 
the chief of state, whom it designated as lord protector. The 
supreme executive power was vested in him, acting with the 
advice of a council of state whose members, though originally 



104 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

appointed by him, were irremovable save by the consent of the 
rest. With the advice of the council the protector could treat 
with foreign states, with its consent he could make peace and 
war, while in it alone was vested the power to choose all future 
protectors. The supreme legislative power was vested in the 
protector, and a parliament consisting of a single chamber to 
be composed of four hundred members from England, thirty 
from Scotland, and thirty from Ireland, according to the plan 
formulated by Vane at the close of the Long Parliament, but 
which that body failed to enact into law. No statutes were 
to be passed nor taxes imposed without the consent of this 
assembly, and all of its enactments were to become law within 
twenty days even without the protector's consent, unless he 
could persuade the house of the reasonableness of his objec- 
tions. It was not to be adjourned, prorogued, or dissolved 
without its own consent within the first five months after its 
meeting, and a new parliament was to be assembled every three 
years. Every person possessed of real or personal property of 
the value of two hundred pounds had the right to vote for 
members, and all were eligible as electors or as members except 
malignants, delinquents, and Roman Catholics. Religious 
liberty was guaranteed to all Christians except prelatists, 
papists, and those who taught licentiousness under the name of 
religion. As the new chamber thus provided for was not to 
meet until the third of the following September, the protector 
was authorized in the mean time to raise all money necessary for 
the public service, and to make ordinances, which should have 
the force of law until the subjects embraced in them could be 
provided for by parliamentary enactments. Under this provi- 
sion, which gave to the protector a wide scope for the exercise 
of his administrative genius, he issued before the parliament 
met sixty-four ordinances, which embraced all the more import- 
ant questions then pressing for solution in church and state. 

Hannis Taylor, The Origin and Growth of the English Constitution. 
II. 341-349. 

S. R. GARDINER (1889) 

On January 15, 1649, whilst the King's fate was still in sus- 
pense, the Council of the Army set forth a document known as 



1827-1898] CRITICAL COMMENT 105 

the Agreemeut of the People. It was a sketch of a written 
Constitution for a Republican Goyernmeut based on the Heads 
of the Proposals [see this paper in Gardiner's Constitutional 
Documents^ page 232], omitting everything that had reference 
to the King. The Heads of the Proposals had contemplated 
the retention of the Royal authority in some shape or another, 
and had been content to look for security to Acts of Parliament, 
because, though every Act was capable of being repealed, it 
could not be repealed without the consent both of the King and 
the Houses, and the Houses might be trusted to refuse their 
consent to the repeal of any Act which checked the despotism 
of the King; w4iilst the King could be trusted to refuse his con- 
sent to the repeal of any Act which checked the despotism of 
the Houses. With the disappearance of Royalty the situation 
was altered. The despotism of Parliament was the chief danger 
to be feared, and there was no possibility of averting this by 
Acts of the Parliament itself. Naturally, therefore, arose the 
idea of a written Constitution, which the Parliament itself 
would be incompetent to violate. According to the proposed 
scheme, the existing Parliament was to be dissolved on April 
30, 1649. After this there was to be a biennial Parliament 
without a House of Lords, a redistribution of seats, and a rating 
franchise. For seven years all who had adhered to the King 
were to be deprived of their votes, and during the first and 
second Parliaments only those who had by contributions or by 
personal service assisted the Parliament, or who had refrained 
from abetting certain combinations against Parliament, were to 
be capable of being elected, whilst those who had actually sup- 
ported the King in the war were to be excluded for fourteen 
years. Further, no official was to be elected. There was to 
be a Council for " managing public affairs." Further, six pai-- 
ticulars were set down with which Parliament could not meddle, 
all laws made on those subjects having no binding force. 

As to religion, there was to be a public profession of the 
Christian religion " reformed to the greatest purity of doctrine," 
and the clergy were to be maintained " out of a public treasury," 
but " not by tithes." This public religion was not to be 
" Popery or Prelacy." No one was to be compelled to con- 
formity, but all religions which did not create disturbances were 



106 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

to be tolerated. It was not, however, to be understood " that 
this liberty shall necessarily extend to Popery or Prelacy," a 
clause, the meaning of which is not clear, but which was prob- 
ably intended to leave the question open to Parliament to decide. 
The Article on Religion was, like the six reserved particulars, 
to be out of the power of Parliament to modify or repeal. 

The idea of reserving certain points from Parliamentary action 
was one which was subsequently adopted in the American Con- 
stitution, with this important difference, that the American 
Constitution left a way open by which any possible change 
could be effected by consulting the nation ; whilst the Agree- 
ment of the People provided no way in which any change in 
the reserved powers could be made at all. In short, the found- 
ers of the American Constitution understood that it was useless 
to attempt to bind a nation in perpetuit}^, whilst the English 
Council of the Army either did not understand it, or distrusted 
the nation too far to make provision for what they knew must 
come in time. . . . 

That the execution of the King made the diflflculties in the 
way of the establishment of a Republic greater than they had 
been, it is impossible to deny ; but the main difficulties would 
have existed even if the King had been deposed instead of 
executed. There are two foundations upon which government 
must rest if it is to be secure, the traditional continuity which 
is derived from the force of habit, and the national support 
which is derived from the force of will. The Agreement of the 
People swept the first aside, and only trusted the latter to a 
very limited extent. 

The Instrument of Government was intended to suit a Con- 
stitutional Government carried on by a Protector and a single 
House. The Protector therefore stepped into the place of the 
King, and there were therefore clauses inserted to define and 
check the power of the Protector, which may fitly be compared 
with those of the Heads of the Proposals. The main difference 
lay in this, that the Heads of the Proposals were intended to 
check a King who, at least for some time to come, was to be 
regarded as hostile to the Parliament, whereas the Instrument 
of Government was drawn up with the sanction of the Pro- 
tector, and therefore took it for granted that the Protector was 



1827-1898J CRITICAL COMMENT 107 

not to be guarded against as a possible enemy. His power 
however was to be limited first by his Council of State, and 
secondly by Parliament. 

Parliament was to be elected and to meet, not as according 
to the Agreement of the People, once in two, but once in three 
years, and to remain in session at least five months. It was 
to be elected in accordance with a scheme for the redistribu- 
tion of seats based on that set forth in the Agreement of the 
People, the Protector and Council having leave to establish 
constituencies in Scotland and Ireland, which were now to send 
members to the Parliament of Westminster. It was the first 
attempt at a parliamentary union between the three countries 
carried out at a time when such a union was only possible, be- 
cause two of the countries had been conquered by one. Instead 
of the old freehold franchise, or of the rating franchise of the 
Agreement of the People, there was the franchise in the counties 
to be given to the possessors of real or personal estate to the 
value of £200. As nothing was said about the boroughs, the 
right of election would remain in those who had it under 
the Monarchy, that is to say, it would vary according to the 
custom of each borough. In those boroughs in which the cor- 
porations elected, the feeling by this time would be likely 
to be anti-Royalist. The disqualification clauses were less 
stringently drawn than in the Agreement of the People, but all 
who had abetted the King in the war were to be deprived of 
their votes at the first election and of the right of sitting in 
the first four Parliaments. Those who had abetted the Re- 
bellion in Ireland, or were Roman Catholics, were permanently 
disqualified from sitting or voting. . . . 

The clauses relating to the power of Parliament in matters of 
finance seem to have been modelled on the old notion that 
" the King was to live of his own" in ordinary times. A con- 
stant yearly revenue was to be raised for supporting an army 
of 30,000 men — now regarded as a permanent charge — and 
for a fleet sufficient to guard the seas as well as £200,000 for 
the domestic administration. The total amount, and the 
sources of the necessary taxation, were to be settled by the 
Protector and Council ; Parliament having no right to diminish 
it without the consent of the Protector. With respect to 



108 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

war expenses, they were to be met by votes of Parliament, ex- 
cept that in the intervals of Parliament the Protector and 
Council might raise money to meet sudden emergencies from 
war till the Parliament could meet, which the Protector and 
Council were bound to summon for an extraordinary session in 
such an emergency. . . . 

The functions of the Council were of considerable importance. 
In all important matters the Protector had to act by its advice, 
and when Parliament was not in session it was to join him in 
passing Ordinances which were to be obeyed until in the next 
session Parliament either confirmed them or disallowed them. 
On the death of the Protector it was the Council which was to 
elect his successor. . . . 

The Instrument of Government suffered not only under the 
vice of ignoring the probable necessity of its amendment in the 
future, but also under the vice of having no support either in 
traditional loyalty nor in national sanction. If, however, we 
pass over these all-important faults, and discuss it from the 
purely constitutional point of view, it is impossible not to be 
struck with the ability of its framers, even if we pronounce 
their work to be not entirely satisfactory. It bears the stamp 
of an intention to steer a middle course between the despotism 
of a " single person " and the despotism of a " single House." 
Parliament had supreme rights of legislation, and the Protector 
was not only sworn to administer the law, but every illegal act 
would come befoi-e the courts of law for condemnation. Parlia- 
ment, too, had the right of disapproving the nominations to 
the principal ininisterial offices, and of voting money for con- 
ducting operations in time of war. Where it fell short of the 
powers of modern Parliaments was in its inability to control 
administrative acts, and in its powerlessness to refuse supplies 
for the carrying on of the government in time of peace. A 
modern Parliament can exercise these powers with safety, be- 
cause if it uses them foolishly a government can dissolve it 
and appeal to the nation, whereas Cromwell, who was but the 
head of a party in the minority, and whose real strength 
rested on the army, did not venture to appeal to the nation at 
large, or even to appeal too frequently to the constituencies 
who were to elect his Parliament. 



1827-1898] CRITICAL COMMENT 109 

The real constitutional safeguard was intended to be in the 
Council of State. Ultimately, after the death of the Councillors 
named in the Instrument, the Council of State would indirectly 
represent the Parliament, as no one would have a place on it 
whose name had not been one of six presented by Parliament. 
In the Council of State, the Protector would be in much the 
same position as a modern Prime Minister in his Cabinet, ex- 
cept that each member of the Council held his position for life, 
whereas a modern Prime Minister can obtain the resignation of 
any member of the Cabinet with whom he is in strong disagree- 
ment. On the other hand, the greater part of the members of 
a modern Cabinet are heads of executive departments, and thus 
have a certain independent position of their own. In some 
respects indeed, the relations between the Protector and the 
Council were more like those between an American President 
and the Senate in executive session, than those between an 
English Prime Minister and the Cabinet. The members of the 
American Senate are entirely independent of the President, as 
the members of the Council of the Protectorate were entirely 
independent of the Protector when once they had been chosen. 
On the other hand, the two bodies differed in a most important 
particular. The tendency of the American Senate, which is 
never oflScially brought into personal contact with the Presi- 
dent, is to be antagonistic to the President. The tendency of 
the Council of State, which was in daily contact with the Pro- 
tector, was to work with him instead of against him. It was 
not, however, in consequence of its merits or demerits as a 
constitutional settlement that the Instrument of Government 
failed. It broke down because the first Parliament summoned 
under it refused to acknowledge its binding force, and claimed 
to be a constituent as well as a legislative body. 

S. II. Gardiner, Introduction to Constitutional Documents of the Puritan 
Revolution, lii. lix. 

J. K. HOSMER (1890) 

On the 20th, the agreement of the People was formally pre- 
sented. ... In 1647, Ireton, to whom the bold and masterly 
elaboration was for the most part due, had not been ready for so 
radical a step, and had left the council abruptly, as we have 



110 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

seen, at the suggestion of laying by the King ; but in the Army 
now, rank and file and chiefs stood together. The paper con- 
sisted of ten articles. . . . Except the 8th article, relating to 
the religious establishment, which, judged by modern ideas, is 
narrow, there is nothing here not most thoroughly reasonable. 
Ireton himself, like Cromwell and Vane, was ready for the 
broadest toleration, including even Jews, infidels, and Pagans ; 
but even in the Rump there were prejudices that must be 
humoured. On the 6th of February it was resolved : " That the 
House of Peers in Parliament is useless and dangerous, and 
ought to be abolished," and on the following day, " that the office 
of the King. ... is unnecessary, burdensome, and dangerous 
to the liberty, safety, and public interest of the People of this 
nation, and therefore ought to be abolished." The old order 
was thus completely swept away, and England was a Republic. 
The English reforms already gained in the nineteenth century, 
and still in progress at the present hour, were all anticipated : 
all too, that is most essential in the American system had been 
formulated. 

Thus we see that popular government, the heritage from the 
ancient Saxon time, seemed likely to have in the days of the 
Ironsides a most complete and memorable revival. It is to be 
noticed that it came about as something into which people were 
forced, rather than something which they voluntarily embraced. 
Eliot, Pym, and Hampden never conceived for England of a 
polity in which King and Lords should be swept away. It was 
the rank and file of the Army, the plain people, the tradesmen 
of the towns ; or rather, since the towns in great majority be- 
came Presbyterian, it was the small farmers, the yeomen, from 
whom proceeded the first assertion of a complete right to self- 
government. Their own leaders at first held back, in some 
cases denouncing so thorough a sweep. At last, however, 
Cromwell, Ireton, Vane, and Milton stood thoroughly with the 
men, — justifying themselves in their course by the belief that 
they undertook no new thing, but only restored the essentials 
of that most ancient freedom that had been so deeply overlaid. 

James K. Hosmer, A Short History of Anglo-Saxon Freedom. 152-155. 



1827-1898] CRITICAL COMMENT 111 

BORGEAUD (1892) 

At the culminating point of the Puritan Revolution, when 
Cromwell, swept on by the democratic movement, is compelled 
to follow it if he would become its master, a curious constitu- 
tional project is seen coming to the surface. This is the 
"Agreement of the People " presented by the army to the 
House of Commons, for its approval and eventual submission 
to the people. The idea of its authors, clearly stated in the 
document itself, and discussed in the pamphlets of the day, was 
the establishment of a supreme law, placed beyond the reach of 
Parliament, defining the powers of that body and expressly 
declaring the rights which the nation reserved to itself and 
which no authority might touch with impunity. This popular 
compact was to receive the personal adhesion of the citizens, 
according to a special procedure therein provided. Its pro- 
mulgation depended upon its acceptance by the people. 

Charles Borgeaud, Adoption and Aviendment of Constitations in Europe 
and America, translated by C. D. Hazen. 5-6. 

BORGEAUD (1894) 

This manifesto contains the outline of a complete constitu- 
tion. When we read it and summarize the demands it con- 
tains, we are astounded to find that it is nearly two centuries 
and a half old. The principles which it lays down are, for the 
most part, the very principles which contemporary democracy 
has first succeeded in establishing, or is still demanding. The 
sovereignty of the people: supreme power vested in a single 
representative assembly; the executive entrusted by an as- 
sembly to a council of state, elected for the term of one 
legislature; biennial parliaments; equitable and proportionate 
distribution of seats : extension of the right of voting, and of 
election to all citizens dwelling in the electoral districts who 
are of full age, and neither hired servants nor in receipt of 
relief : the toleration of all forms of Christianity : the suppres- 
sion of state interference in church government ; the limitation 
of the powers of the representative assembly, by fundamental 
laws embodied in the constitution, especially with regard to the 
civil liberties guaranteed to citizens — these are the principles 



112 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

proclaimed by the English democrats in January, 1648-49. 
. . . This document bears the significant title of " An Agree- 
ment of the People of England." It was presented to Parlia- 
ment, not in order that Parliament might publish it of its own 
authority, but that it might approve it and submit it to the 
nation. ... It was a real constitutional Charter, founded on 
the direct acceptance of the people, and placed above the reach 
of the representative Assembly — a constitution in the sense 
in which the word is understood by the democracies of the 
United States and Switzerland to-day. 

When the roll containing the Agreement of the People was 
presented to the House of Commons, the address was listened 
to with all the respect due to the rank of those who bore it, and 
a vote of thanks was passed with great solemnity. The read- 
ing of the Agreement itself, however, was put off to a more 
convenient season. Business of the greatest importance was 
then occupying the minds of some of its members. On that 
very day began the trial of the King. 

It is remarkable, however, that certain reforms which had 
formerly been demanded by the democratic pai"ty, or brought 
forward in the Agreement of the People, were carried out 
during the Protectorate ; for example, the judicial reforms and 
the reforms in the system of parliamentary representation. 

The Instrument of Government which was elaborated in 1653 
by the Council of Officers, was a written Constitution, the first, 
and down to the present time the only one ever possessed by 
modern England. 

Charles Borgeaud, Rise of Modern Democracy in Old and New Eng- 
land, translated by Mrs. Birkbeck Hill. 38-98. 

RANSOME (1895) 

Three days later, a new constitution, devised by Lambert 
and embodied in the Instrument of Government, was accepted 
by the council of officers. In it the executive and legislative 
powers were distributed between a Protector, a council of 
state, and a parliament. Cromwell Avas named Protector, and 
was to be general by sea and land. He was, however, to 
decide questions of war and peace by the advice of the council 



1827-1898] CRITICAL COMMENT 113 

of state, and in ease of war, parliament was to be immediately 
summoned. The m^embers of the council of state were also 
named in the instrument : and the chief were Lambert, Des- 
borough, Montague, Skippou, Antony Ashley Cooper, and six 
others. On the death of any of these, the vacancy was to be 
filled up by the Protector from a list of six names chosen by 
parliament. All legislative power was reserved to parliament, 
but the Protector might suspend the coming into operation of 
any act for twenty days. Parliaments were to be elected by 
the new constituencies proposed by the Long Parliament, in 
accord with the Agreement of the People. They were to be 
held every third year ; but no parliament was to be dissolved 
till it had sat five months. By these arrangements it was 
hoped to combine the freedom of republican institutions with 
the practical efficiency of a single sovereign acting through a 
cabinet. In reality, except when parliament was sitting, it 
gave almost unlimited power to the Protector. Cromwell at 
once accepted the post of Protector, and was solemnly inaugu- 
rated in Westminster Hall, Lambert taking the leading share 
in the ceremony. 

Cyril Ransome, An Advanced History of England. 600. 

MEDLEY (1898) 

From 1642 to 1660 the English Constitution was practically 
in abeyance ; but the expedients which were evoked to fill the 
void, formed no unimportant element in the future development 
of the constitution. For, in the first place, the period of the 
Commonwealth was distinguished by an attempt to change the 
whole current of English history. As things have worked 
themselves out, we have a constitution which contains no 
fundamental laws unalterable by the three Estates in Parlia- 
ment assembled, but leaves that body the legal sovereign with 
control of the executive. But had the constitutions projected 
under the Commonwealth been permanent, the development of 
our system would have been hampered, if not checked, by 
fundamental laws, and the written constitution would have 
been sovereign instead of Parliament; while the executive and 
legislature would have existed independently of each other, as 
in the United States at the present day. In the second place. 



114 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 

Cromwell was perhaps chiefly hindered by his conservatism. 
For he fell back on old expedients, and tried, as far as 
might be, to reproduce the old constitution without those 
links of historical association which had bound its several 
parts together, and with that balance of powers which his 
training in the ranks of the parliamentary party had led him 
to regard as the ideal. Thus the Instrument of Government 
set up an executive of a Protector and Council with co-ordi- 
nate authority, and a Parliament of one chamber independent 
of the Council, unable on the one hand to alter the constitu- 
tion, and on the other hand to be itself adjourned or dissolved 
for five months without its own consent. 

Dudley Julius Medley, A Student's Manual of English Constitutional 
History. 305-306. 



1679] HABEAS CORPUS ACT— TEXT 115 



Chapter VIII 
HABEAS CORPUS ACT (1679) 

SUGGESTIONS 

The document for the Habeas Corpus Act is intituled " an act for tlie 
better securing of the liberty of the subject and for prevention of 
imprisonments beyond the seas." Various attempts have been made 
unsuccessfully to obtain the passage of two Bills, one to give a more 
expeditious use of the writs of Habeas Corpus in Criminal matters — 
the other to prevent imprisonment in jails beyond the seas. 

The old principle of relief from arbitrary arrest laid down in Magna 
Charta, and applied throughout the succeeding constitutions, always 
lacked a short and easy process of establishing the fact of illegal de- 
tention. At length in 1679 this famous act was passed ; although 
defective in the promises as to bail and common law and falsehood, 
this statute stands as one of the most important landmarks of human 
liberty. It should be studied in its relation to the growth of the 
liberty of the subject. 

For Outlines and Material, see Appendix A. 

DOCUMENT 
Habeas Corpus Act (1679) 

Extracts from the Provisions of the Statute, 31° 
Car. II. c. 2. 

1. That on complaint and request in writing by or Translitera- 

on behalf of any person committed and charged with ^^^ SMes 

any crime (unless committed for treason or felony of the Realm, 

expressed in the warrant; or as accessory, or on sus- J) 935-938. 
.. « -, . in iiJ^^L^ '^ee Appen- 

picion of being accessory, before the tact, to any ^jx (B) 

petit- treason or felony : or upon suspicion of such for full text. 

Note Maf^na 
petit-treason or felony, plainly expressed in the war- ct^arta Art. 

rant ; or unless he is convicted or charged in execu- 39^0. 

tion by legal process), the lord chancellor or any 

of the twelve judges, in vacation, upon viewing a 



116 HABEAS CORPUS ACT [Ch. VIII 

copy of the warrant, or affidavit that a copy is 

denied, shall (unless the party has neglected for two 

There are terms to apply to any court for his enlargement) award 

made^use of ^ ^ ^^^^^^^^ cow^s for such prisoner, returnable im- 

in England; mediately before himself or any other of the judges; 

and the ^^^ upon the return made shall discharge the party, 

still others, if bailable, upon giving security to appear and answer 

in the Uni- to the accusation in the proper court of iudicature. 
ted States 

2. That such writs shall be endorsed, as granted 

in pursuance of this act, and signed by the person 

awarding them. 

Blackstone 3. That the writ shall be returned and the prisoner 

counts this a brought up, within a limited time according to the 

high pre- . t • ^ 

rogative." distance, not exceednig ni any case twenty days. 

4. That officers and keepers neglecting to make 
due returns, or not delivering to the prisoner or his 
agent within six hours after demand a copy of the 
warrant of commitment, or shifting the custody of 
a prisoner from one to another, without sufficient 
reason or authority, (specified in the act,) shall for 
the first offence forfeit £100 and for the second 
offence £200 to the party grieved, and be disabled 
to hold his office. 

5. That no person, once delivered by habeas 
coT'pus^ shall be recommitted for the same offence, 
on penalty of £500. 

6. That every person committed for treason or 
felony shall, if he requires it the first week of the 
next term, or the first day of the next session of 
oyer and terminer, be indicted in that term or ses- 
sion, or else admitted to bail ; unless the king's 
witnesses cannot be produced at that time ; and if 
acquitted, or if not indicted and tried in the second 
term or session, he shall be discharged from his im- 
prisonment for such imputed offence ; but that no 
person, after the assizes shall be open for the county 
in which he is detained, shall be removed by habeas 
corpus, till after the assizes are ended ; but shall be 
left to the justice of the judges of assize. 



1724] CONTEMPORARY EXPOSITION 117 

7. That any such prisoner may move for and 
obtain his habeas corpus, as well out of the chan- 
cery, or exchequer, as out of the king's bench or 
common pleas; and the lord chancellor or judges 
denying the same, on sight of the warrant or oath 
that the same is refused, forfeit severally to the 
party grieved the sum of £500. 

8. That this writ of habeas corpus shall run This act, as 

into the counties palatine, cinque ports, and other expressed in 
■ ■-, -.1 T . 1 . 1 T <- V , early writs, 

privileged places, and the islands of Jersey and was so often 

Guernsey. broken in 

rpi*^ri of 

9 . That no inhabitant of England (except per- Charles I. 

sons contracting, or convicts praying, to be trans- that it 

ported; or having committed some capital offence about the 

in the place to which they are sent) shall be sent parliamen- 

prisoner to Scotland, Ireland, Jersey, Guernsey, or tary inquiry 

1 1 -, ,\ •.-, ■ . -, , endmg m the 

any places beyond the seas, withm or without the Petition of 

king's dominions ; on pain that the party commit- Right, 1628. 

ting, his advisers, aiders, and assistants, shall forfeit Broken in 

to the party grieved a sum not less than £500 to portatkm ' 

be recovered with treble costs ; shall be disabled to Act in reign 

bear any office of trust or profit ; shall incur the of George 

penalties of praemunire; and shall be incapable of 

the king's pardon. 



CONTEMPORARY EXPOSITION 

BISHOP BURNET (1724) 

It was carried by an odd artifice in the House of Lords. Lord 
Grey and Lord Norris were named to be the tellers. Lord 
Norris being a man subject to vapours, was not at all times 
attentive to what he was doing, so, a very fat lord coming in. 
Lord Grey counted him for ten as a jest at first, but seeing 
Lord Norris had not observed it, he went on with this mis- 
reckoning of ten ; so it was reported to the house, and declared 
that they who were for the bill were the majority, though it 
indeed went on the other side ; and by this means the bill 
was past. 

Gilbert Burnet, History of His Own Time. I. 485. 



118 HABEAS CORPUS ACT [Ch. VIII 



CRITICAL COMMENT 

BLACKSTONE'S COMMENTAEIES (17G5) 

The oppression of an obscure individual gave birth to the 
famous habeas corpus act (31 Car. II. c. 2) which is frequently 
considered as another magna carta of the kingdom ; and by 
consequence and analogy has also in subsequent times reduced 
the general method of proceeding on these writs ... to the 
true standard of law and liberty. 

Sir Wm. Blackstone, Commentaries on the Laws of England. B. III. 
135-136. 

CREASY (1859) 

The Habeas Corpus Act also, which was passed in this reign 
(31 Car. 11. c. 2), is of great constitutional value, though it by 
no means introduced any new principle into our system, or 
formed any such epoch in the acquisition of the national liber- 
ties as some writers represent. But it made the remedies 
against arbitrary imprisonment short, certain, and obtainable 
at all times and in all cases. . . . 

These enactments, and especially the Habeas Corpus Act, 
make the name of Charles II. figure creditably in our statute- 
book, and there is one judicial decision of this reign which 
established a constitutional principle of the highest value, or 
rather which put an end to a long-continued abuse of the most 
perilous character. 

E. S. Ckexs.x, Rise and Progress of the English Constitution. 269,272. 
R. C. HURD (1877) 

It was not to bestow an immunity from arbitrary imprison- 
ment, which is abundantly provided in Magna Carta (if .indeed 
it is not much more ancient), that the statute of Charles II. 
was enacted ; but to cut off the abuses by which the govern- 
ment's lust of power, and its servile subtlety of crown lawyers, 
had impaired so fundamental a privilege. 

ROLLIN C. HuRD, Pught of Personal Lihertij. 84. 



1765-1889] CRITICAL COMMENT 119 



PATERSON (1877) 

On May 27, 1679, the Habeas Corpus Act passed, and, 
after the lapse of two centuries, it has been found by experi- 
ence to have made the machinery revolve so promptly and cut 
so clearly into the marrow of all the mischiefs attending the 
possession of might, regardless of right, that no king or min- 
ister, led away with the dream of power, has since sought 
seriously to baffle or disable it. . . . It is now a familiar code, 
and represents a whole armoury of strength, for every line 
and syllable of which each citizen would fight to the last, as 
for his household gods. Holt said every man should be con- 
cerned for Magna Charta. And the Habeas Corpus Act is only 
a natural sequel and development of Magna Charta. No dic- 
tator, whether single-handed or hydra-headed, can long breathe 
the same air with those who have caught the secret of its power. 
It appeals to the first principles of security, and to the law of 
natui'e, if any such there be. Its whole essence is nothing- 
else than this. Every human being, who is not charged with 
or convicted of a known crime, is entitled to personal liberty. 

James Paterson, Liberty of the Subject, Securiti/ of the Person. II. 207-8. 
TASWELL-LANGMEAD (1870) 

It was subject, however, to three defects. (1) It fixed no 
limit on the amount of bail which might be demanded. (2) It 
only applied to commitments on Criminal or supposed Criminal 
charges; all other cases of unjust imprisonment being left to 
the habeas corpus at Common Law as it subsisted before this 
enactment. (3) It did not guard against falsehoods in the 
return. The first of these defects was remedied in 1689, by 
the Bill of Rights, which declared " that excessive bail ought not 
to be required." The other two (notwithstanding a serious 
attempt in 1757 to render the habeas corjnis at Common Law 
more eflflcient) subsisted down to the year 1816 when they were 
at length removed by ' An Act for more effectually securing 
the liberty of the subject.' (56 Geo. III. c. 100.) 

T. P. Taswell-Langmead, j??!<7/js/i Constitutional Histonj. 521. 



120 HABEAS CORPUS ACT [Ch. VIII 

DICEY (1885) 

The right to the writ of Habeas Corpus existed at common law 
long before the passing in 1679 of the celebrated Habeas Corpus 
Act (31 Car. II. cap. 2), and you may wonder how it has hap- 
pened that this and the subsequent Act (56 Geo. III. cap. 100) 
are treated and (for practical purposes) rightly treated, as the 
basis on which rests an Englishman's security for the enjoy- 
ment of his personal freedom. The explanation is, that prior 
to 1679 the right to the writ was often, under various pleas and 
excuses, made of no effect. The aim of the Habeas Corpus 
Act has been to meet all the devices by which the effect of the 
writ can be evaded, either on the part of the judges, who 
brought to issue the same, and if necessary discharge the pris- 
oner, or on the part of the gaoler or the person who has the 
prisoner in custody. The earlier Act of Charles the Second 
applies to persons imprisoned on a charge of crime. The later 
Act of G-eorge the Third applies to persons deprived of their 
liberty otherwise than on a criminal accusation. 

Albert V. Dicey, Introduction to the Study of the Laivofthe Constitution. 
207. 208. 

MAY (1887) 

The writ of Habeas Corpus is unquestionably the first security 
of civil liberty. It brings to light the cause of every imprison- 
ment, approves its lawfulness, or liberates the prisoner. It 
exacts obedience from the highest courts ; Parliament itself 
submits to its authority. No right is more justly valued. It 
protects the subject from unfounded suspicions, from the 
aggressions of power, and from abuses in the administration of 
justice. Yet this protective law, which gives every man 
security and confidence in times of tranquillity, has been sus- 
pended, again and again, in periods of public danger or appre- 
hension. Rarely, however, has this been suffered without 
jealousy, hesitation, and remonstrance ; and whenever the 
perils of the state have been held sufficient to warrant this 
sacrifice of personal liberty, no minister or magistrate has been 
suffered to tamper with the law at his discretion. Parliament 
alone, convinced of the exigency of each occasion, has sus- 



1765-1889] CRITICAL COMMENT 121 

pencled, for a time, the rights of individuals, in the interests of 
the state. 

Sir Thomas Erskihe May, The Constitutional History of England. II. 
252, 253. 

HANNIS TAYLOR (1889) 

To put an end forever to every device, plea, or excuse by 
which the right to the actual benefits of the writ had been for- 
merly made abortive, was finally passed the Habeas Corpus 
Act of 1679, the essence of which is that the chancellor and all 
of the judges are charged with the duty upon a proper appli- 
cation to direct the writ even he privileged places, including 
the islands of Jersey and Guernsey, requiring any person who 
is imprisoned to be actually and speedily brought before the 
court, together with the cause of the imprisonment, to the end 
that such court may either set him free, bail him, or remand 
him for a speedy trial, as justice may require. 

Hannis Taylor, Origin and Growth of the Ejiglish Constitution. II. 382. 



122 THE BILL OF RIGHTS [Ch. IX 



Chapter IX 
THE BILL OF RIGHTS (1689) 

SUGGESTIONS 

In the second session of the Convention Parliament, which reassem- 
bled on the 25th of October, 1689, the Declaration of Right, which 
embodied the fundamental principles of the English Constitution and 
of the ancient franchises of the English nation, was confirmed with 
some slight but important amendments in a regular act of the Legis- 
lature. This Act is known as the Bill of Rights. The Convention 
Parliament had met on the 22nd of January, 1688, and a week later, 
the Commons passed their celebrated Resolution, in which, as James 
II. had abdicated the throne, it was deemed inconsistent with the 
safety of the kingdom that a Protestant government should be in the 
hands of a " Popish Prince." After conferences between William and 
the political leaders, as well as between the two Houses, it was re- 
solved that a Committee of the Commons should consider what steps 
it might be advisable to take to secure law and liberty against the 
aggressions of future sovereigns. 

The Declaration of Right was accordingly drawn up. 

In studying the Bill of Rights it is necessary to understand 
thoroughly the reaction against Puritanism after the Restoration and 
the subsequent revival of Protestant feeling produced by James IT.'s 
policy toward the church and the government. The position of 
William of Orange on the continent, both as military hero and politi- 
cal governor, must also be taken into consideration. All later Bills of 
Rights take their key-note from this famous document, of which 
Taswell-Langmead speaks as " the third great charter of English 
liberty and the coping-stone of the Constitutional Building." 

For Outlines and Material see Appendix A. 

DOCUMENT 
The Bill of Rights Oct. 25 (1689) 

The Statutes An AcT FOR DECLARING THE ElGHTS AND LlBER- 

qfthe Realm. xiES OF THE SuBJECT, AND SETTLING THE SuCCES- 
VI. 142-145. ^ 

SIGN OF THE CrOWN. 



1689] TEXT 123 

Whereas the Lords Spiritual and Temporal, and Based upon 
Commons, assembled at Westminster, lawfully, ^^}'^- I^^clara- 
fully, and freely representing all the estates of the Eight which 
people of this realm, did upon the Thirteenth day accompanied 
of February, in the j^ear of our Lord One Thousand ^^^g Crown to 
Six Hundred Eighty-eight, present unto their Majes- William and 
ties, then called and known by the names and style iq^j^'cq 
of William and Mary, Prince and Princess of Orange, 
being present in their proper persons, a certain De- 
claration in writing, made by the said Lords and 
Commons, in the words following, viz.: — 

" Whereas the late King James II., by the assist- 
ance of divers evil counsellors, judges, and minis- 
ters employed by him, did endeavour to subvert 
and extirpate the Protestant religion, and the laws 
and liberties of this kingdom : — 

(1.) By assuming and exercising a power of dis- In early 

pensing with and suspending of laws, and the execu- times the 
. , . , J. -r. T dispensing 

tion of laws, without consent of Parliament. power had 

(2.) By committing and prosecuting divers worthy been con- 

sidered leo^al 
prelates, for humbly petitioning to be excused from ° 

concurring to the said assumed power. 

(3.) By issuing and causing to be executed a 
commission under the Great Seal for erecting a 
court, called the Court of Commissioners for Eccle- 
siastical Causes. 

(4. ) By levying money for and to the use of the Compare the 
Crown by pretence of prerogative, for other time following 
and in other manner than the same was granted by l^ith the^^ 
Parliament. Declaration 

(5.) By raising and keeping a standing army J-ndepend- 
within this kingdom in time of peace, without con- 
sent of Parliament, and quartering soldiers contrary 
to law. 

(6.) By causing several good subjects, being 
Protestants, to be disarmed, at the same time when 
Papists were both armed and employed contrary to 
law. 



124 THE BILL OF RIGHTS [Ch. IX 

(7.) By violating the freedom of election of 
members to serve in Parliament. 

(8.) By prosecutions in the Court of King's Bench 
for matters and causes cognizable only in Parlia- 
ment; and by divers other arbitrary and illegal 
causes. 

(9.) And whereas of late years, partial, corrupt, 
and unqualified persons have been returned, and 
served on juries in trials, and particularly diverse 
jurors in trials for high treason, which were not 
freeholders. 

(10.) And excessive bail hath been required of 
persons committed in criminal cases, to elude the 
benefit of the laws made for the liberty of the 
subjects. 

(11.) And excessive fines have been imposed; 
and illegal and cruel punishments inflicted. 

(12.) And several grants and promises made of 
fines and forfeitures, before any conviction or judg- 
ment against the persons upon whom the same were 
to be levied. 

All which are utterly and directly contrary to 
the known laws and statutes, and freedom of this 
realm. 

And whereas the said late King James II. having 
abdicated the government, and the throne being 
thereby vacant, his Highness the Prince of Orange 
(whom it hath pleased Almighty God to make the 
glorious instrument of delivering this kingdom from 
Popery and arbitrary power) did (by the advice of 
the Lords Spiritual and Temporal, and diverse prin- 
cipal persons of the Commons) cause letters to be 
Summons to written to the Lords Spiritual and Temporal, being 
*r^ p^T?'^' Protestants, and other letters to the several coun- 
ment. ties, cities, universities, boroughs, and cinque ports, 

for the choosing of such persons to represent them, 
as were of right to be sent to Parliament, to meet 
and sit at Westminster upon the two-and- twentieth 
day of January, in this year one thousand six hun- 



1689] TEXT 125 

dred eighty and eight, in order to such an estab- 
lishment, as that their religion, laws, and liberties 
might not again be in danger of being subverted ; 
upon which letters elections have been accordingly 
made. 

And thereupon the said Lords Spiritual and Tem- 
poral, and Commons, pursuant to their respective 
letters and elections, being now assembled in a full 
and free representation of this nation, taking into 
their most serious consideration the best means for 
attaining the ends aforesaid, do in the first place 
(as their ancestors in like case have usually done), 
for the vindicating and asserting their ancient rights 
and liberties, declare : — 

(1.) That the pretended power of suspending of 
laws, or the execution of laws, by regal authority, 
without consent of Parliament, is illegal. 

(2.) That the pretended power of dispensing with 
laws, or the execution of laws by regal authority, as 
it hath been assumed and exercised of late, is illegal. 

(3.) That the commission for erecting the late 
Court of Commissioners for Ecclesiastical causes, 
and all other commissions and courts of like nature, 
are illegal and pernicious. 

(4.) That levying money for or to the use of the 
Crown by pretence of prerogative, without grant of 
Parliament, for longer time or in other manner than 
the same is or shall be granted, is illegal. 

(5.) That it is the right of the subjects to petition 
the King, and all commitments and prosecutions for 
such petitioning are illegal. 

(6.) That the raising or keeping a standing army 
within the kingdom in time of peace, unless it be 
with consent of Parliament, is against law. 

(7.) That the subjects which are Protestants From 1695 to 
may have arms for their defence suitable to their l'^28, effort to 
conditions, and as allowed by law. articles. 

(8.) That election of members of Parliament Great in- 
ought to be free. 



126 



THE BILL OF RIGHTS 



[Ch. IX 



crease of 
bribery, time 
Geo. III. 
This act first 
enforced in 
1407. 



See Magna 
Cliarta, Art. 
xxxvi. 



This is the 
first official 
statement 
that the 



(9. ) That the freedom of speech, and debates or 
proceedings in Parhament, ought not to be im- 
peached or questioned in any court or place out 
of Parliament. 

(10.) That excessive bail ought not to be re- 
quired, nor excessive fines imposed; nor cruel and 
unusual punishments inflicted. 

(11.) That jurors ought to be duly impanelled 
and returned, and jurors which pass upon men in 
trials for high treason ought to be freeholders. 

(12.) That all grants and promises of fines and 
forfeitures of particular persons before conviction 
are illegal and void. 

(13.) And that for redress of all grievances, and 
for the amending, strengthening, and preserving of 
the laws. Parliament ought to be held frequently. 

And they do claim, demand, and insist upon all 
and singular the premises, as their undoubted rights 
and liberties ; and that no declarations, judgments, 
doings or proceedings, to the prejudice of the people 
in any of the said premises, ought in any wise to be 
drawn hereafter into consequence or example. 

To which demand of their rights they are particu- 
larly encouraged by the declaration of his Highness 
the Prince of Orange, as being the only means for 
obtaining a full redress and remedy therein. 

Having therefore an entire confidence that his 
said Highness the Prince of Orange will perfect the 
deliverance so far advanced by him, and will still 
preserve them from the violation of their rights, 
which they have here asserted, and from all other 
attempts upon their religion, rights, and liberties : 

II. The said Lords Spiritual and Temporal, and 
Commons, assembled at Westminster, do resolve, 
that William and Mary, Prince and Princess of 
Orange, be, and be declared, King and Qneen of 
England, France, and Ireland, and the dominions 
thereunto belonging, to hold the crown and royal 
dignity of the said kingdoms and dominions to them 



1689] TEXT 127 

the said Priace and Princess during their lives, and crown of 
the life of the survivor of them ; and that the~sole bJcoTferred 
and full exercise of the regal power be only in, by Parlia- 
and executed by, the said Prince of Orange, in the ^^^^^t. 
names of the said Prince and Princess, during their 
joint lives ; and after their deceases, the said Crown 
and royal dignity of the said kingdoms and domin- 
ions to be to the heirs of the body of the said Prin- 
cess ; and for default of such issue to the Princess 
Anne of Denmark, and the heirs of her body ; and 
for default of such issue to the heirs of the body of 
the said Prince of Orange. And the Lords Spirit- 
ual and Temporal, and Commons, do pray the said 
Prince and Princess to accept the same accordingly. 

III. And that the oaths hereafter mentioned be 

taken by all persons of whom the oaths of allegiance New oath of 
and supremacy might be required by law, instead of allegiance, 
them ; and that the said oaths of allegiance and premacy 
supremacy be abrogated. oath. 

"I, A. B., do sincerely promise and swear, That 
I will be faithful and bear true allegiance to their 
Majesties King William and Queen Mary : 
" So help me God." 

" I, A. B., do swear, That I do from my heart 
abhor, detest, and abjure as impious and heretical Supremacy. 
that damnable doctrine and position, that Princes 
excommunicated or deprived by the Pope, or any 
authority of the See of Rome, may be deposed or 
murdered by their subjects, or any other whatso- 
ever. And I do declare. That no foreign prince, 
person, prelate, state, or potentate hath, or ought 
to have, any jurisdiction, power, superiority, pre- 
eminence, or authority, ecclesiastical or spiritual, 
within this realm : 

"So help me God!" 

IV. Upon which their said Majesties did accept Agreement 
the Crown and royal dignity of the kingdoms of between 
England, France, and Ireland, and the dominions Parliament, 
thereunto belonging, according to the resolution 



128 THE BILL OF RIGHTS [Ch. IX 

and desire of the said Lords and Commons con- 
tained in the said declaration. 

V. And thereupon their Majesties were pleased, 
that the said Lords Spiritual and Temporal, and 
Commons, being the two Houses of Parliament, 
should continue to sit, and with their Majesties' 
royal concurrence make effectual provision for the 
settlement of the religion, laws and liberties of this 
kingdom, so that the same for the future might not 
be in danger again of being subverted ; to which the 
said Lords Spiritual and Temporal, and Commons, 
did agree and proceed to act accordingly. 

VI. Now in pursuance of the premises, the said 
Lords Spiritual and Temporal, and Commons, in 

See Declara- Parliament assembled, for the ratifying, confirming, 
tion of Inde- and establishing the said declaration, and the 
pen en e. articles, clauses, matters, and things therein con- 
tained, by the force of a law made in due form by 
authority of Parliament, do pray that it may be 
declared and enacted, That all and singular the 
rights and liberties asserted and claimed in the said 
declaration are the true, ancient, and indubitable 
rights and liberties of the people of this kingdom, 
and so shall be esteemed, allowed, adjudged, 
deemed, and taken to be, and that all and every the 
particulars aforesaid shall be firmly and strictly 
holden and observed, as they are expressed in the 
said declaration; and all officers and ministers 
whatsoever shall serve their Majesties and their 
successors according to the same in all times to 
come. 

VII. And the said Lords Spiritual and Temporal, 
and Commons, seriously considering how it hath 
pleased Almighty God, in his marvellous provi- 
dence, and merciful goodness to this nation, to pro- 
vide and preserve their said Majesties' royal persons 
most happily to reign over us upon the throne of 
their ancestors, for which they render unto Him 
from the bottom of their hearts their humblest 



1689] TEXT 129 

thanks and praises, do truly, firmly, assuredly, and 
in the sincerity of their hearts, think, and do here- 
by recognize, acknowledge, and declare, that King 
James II. having abdicated the Government, and 
their Majesties having accepted the Crown and 
royal dignity aforesaid, their said Majesties did be- 
come, were, are, and of right ought to be, by the 
laws of this realm, our sovereign liege Lord and 
Lady, King and Queen of England, France, and 
Ireland, and the dominions thereunto belonging, in 
and to whose princely persons the royal state, 
crown, and dignity of the same realms, with all 
honours, styles, titles, regalities, prerogatives, 
powers, jurisdictions, and authorities to the same 
belonging and appertaining, are most fully, right- 
fully, and entirely invested and incorporated, 
united, and annexed. 

VIII. And for preventing all questions and divi- 
sions in this realm, by reason of any pretended Limitations 
titles to the Crown, and for preserving a certainty ^^ settlement 
in the succession thereof, in and upon which the 
unity, peace, tranquillity, and safety of this nation 
doth, under G-od, wholly consist and depend, the 
said Lords Spiritual and Temporal, and Commons, 
do beseech their Majesties that it may be enacted, 
established, and declared, that the Crown and regal 
government of the said kingdoms and dominions, 
with all and singular the premises thereunto be- 
longing and appertaining, shall be and continue to 
their said Majesties, and the survivor of them, dur- 
ing their lives, and the life of the survivor of them. 
And that the enth-e, perfect, and full exercise of 
the regal power and government be only in, and 
executed by, his Majesty, in the names of both their 
Majesties, during their joint lives ; and after their 
deceases the said Crown and premises shall be and 
remain to the heirs of the body of her Majesty : and 
for default of such issue, to her Eoyal Highness the 
Princess Anne of Denmark, and the heirs of her 



130 



THE BILL OF RIGHTS 



[Ch. IX 



See Act of 
Settlement. 



Exclusion 
clause. 



body ; aud for default of such issue, to the heirs of 
the body of his said Majesty : And thereunto the 
said Lords Spiritual and Temporal, and Commons, 
do, in the name of all the people aforesaid, most 
humbly and faithfully submit themselves, their heirs 
and posterities, forever : and do faithfully promise, 
That they will stand to, maintain, and defend 
their said Majesties, and also the limitation and 
succession of the Crown herein specified and con- 
tained, to the utmost of their powers, with their 
lives and estates, agaiust all persons whatsoever 
that shall attempt anything to the contrary. 

IX. And whereas it hath been found by experi- 
ence, that it is inconsistent with the safety and wel- 
fare of this Protestant kingdom, to be governed by 
a Popish prince, or by any king or queen marrying a 
Papist, the said Lords Spiritual and Temporal, and 
Commons, do further pray that it may be enacted, 
That all and every person and persons that is, are, 
or shall be reconciled to, or shall hold communion 
with, the See or Church of Rome, or shall profess 
the Popish religion, or shall marry a Papist, shall 
be excluded, and be for ever incapable to inherit, 
possess, or enjoy the Crown and Government of 
this realm, and Ireland, and the dominions there- 
unto belonging, or any part of the same, or to have, 
use, or exercise any regal power, authority, or juris- 
diction within the same ; and in all and every such 
case or cases the people of these realms shall be and 
are hereby absolved of their allegiance ; and the said 
Crown and Government shall from time to time 
descend to, and be enjoyed by, such person or 
persons, being Protestants, as should have inherited 
and enjoyed the same, in case the said person or 
persons so reconciled, holding communion, or pro- 
fessing, or marrying, as aforesaid, were naturally 
dead. 

X. And that every King and Queen of this 
realm, who at any time hereafter shall come to and 



1689] TEXT ISI 

succeed in the Imperial Crown of this kingdom, Future Dec- 
shall, on the first day of the meeting of the first laration. 
Parliament, next after his or her coming to the 
Crown, sitting in his or her throne in the House of 
Peers, in the presence of the Lords and Commons 
therein assembled, or at his or her coronation, be- 
fore such person or persons who shall administer 
the coronation oath to him or her, at the time of 
his or her taking the said oath (which shall first 
happen) , make, subscribe, and audibly repeat the 
declaration mentioned in the statute made in the 
thirteenth year of the reign of King Charles II., 
intituled " An act for the more effectual preserving 
the King's person and Government, by disabling 
Papists from sitting in either House of Parliament." 
But if it shall happen, that such King or Queen, upon 
his or her succession to the Crown of this realm, 
shall be under the age of twelve years, then every 
such King or Queen shall make, subscribe, and 
audibly repeat the said declaration at his or her coro- 
nation, or the first day of meeting of the first Par- 
liament as afoi'esaid, which shall first happen after 
such King or Queen shall have attained the said 
age of twelve years. 

XI. All which their Majesties are contented and 
pleased shall be declared, enacted, and established Enacting 
by authority of this present Parliament, and shall Clause, 
stand, remain, and be the law of this realm for 

ever ; and the same are by their said Majesties, by 
and with the advice and consent of the Lords 
Spiritual and Temporal, and Commons, in Parlia- 
ment assembled, and by the authority of the same, 
declared, enacted, or established accordingly. 

XII. And be it further declared and enacted by 

the authority aforesaid, That from and after this Dispensing 

present session of Parliament, no dispensation by po^er re- 

T ^ . moved. 

non obstante of or to any statute, or any part there-. 

of, shall be allowed, but that the same shall be held 

void and of no effect, except a dispensation be 



132 THE BILL OF RIGHTS [Ch. IX 

allowed of in such statute, and except in such cases 
as shall be specially provided for by one or more 
bill or bills to be passed during this present session 
of Parliament. 

XIII. Provided that no charter, or grant, or par- 
don granted before the three-and-twentieth day of 
October, in the year of our Lord One thousand six 
hundred eighty-nine, shall be any ways impeached 
or invalidated by this Act, but that the same shall 
be and remain of the same force and effect in law, 
and no other, than as if this Act had never been 
made. 



CONTEMPORARY EXPOSITION 

BISHOP BURNET (1724) 

There was a bill of great importance sent up by the Com- 
mons to the Lords : ... it was a bill, declaring the rights and 
liberties of England, and the succession to the Crown, as had 
been agreed by both houses of parliament, to the king and 
queen and their issue. . . . The bill passed without opposition 
in the beginning of the next session, which I mention here that 
I might end this matter all at once. 

Gilbert Bdrnet, History of His Own Time. 533. 

CRITICAL COMMENT 

LUFFMAN (1792) 

The Constitution of England, as established under the 
sacred authority of Magna Charta, had, at the crisis which pro- 
duced the Bill of Rights, become very much impaired by the 
many encroachments which some of the succeeding kings from 
the time of John made upon its equitable form. . . . The 
moment that the Declaration of Right was made on the behalf 
of the English People and acknowledged by the Prince of 
Orange and his consort as the supreme law, in future to be 
observed, at that instant the constitution was renovated, the 
power of the crown was acknowledged to flow from its only 



1792-1895] CRITICAL COMMENT 133 

natural source, the people, and a reciprocal interest, proceeding 
from allegiance on one part and protection on the other, formed 
the guarantee of the monarch's prerogative and the people's 
freedom. 

J. LxjffmAjS', Citizen and Goldsmith^ a pamphlet. 
GUIZOT (1842) 

AH England, except a very small party, was at this time 
arrayed against James ; and it seems very certain, that, under 
some form or other, the revolution of 1688 must have been 
accomplished. But at this crisis causes even superior to the 
internal state of England conduced to this event. It was 
European as well as English. It is at this point that the Eng- 
lish revolution links itself, by facts, and independently of the 
influence of its example, to the general course of European 
civilization. 

GuizOT, General History of Civilization from the Fall of the Roman Empire 
to the French Revolution. 285. 

HACAULAT (1849) 

This revolution, of all revolutions the least violent, has been 
of all revolutions the most beneficent. It finall}^ decided the 
great question whether the popular element which had, ever 
since the age of Fitz waiter and De Montfort, been found in the 
English polity, should be destroyed by the monarchical element, 
or should be suffered to develop itself freely, and to become 
dominant. The strife between the two principles had been 
long, fierce, and doubtful. It had lasted through four reigns. 
It had produced seditions, impeachments, rebellions, battles, 
sieges, proscriptions, judicial massacres. Sometimes liberty, 
sometimes royalty, had seemed to be on the point of perishing. 
During many years one half of the energy of England had been 
employed in counteracting the other half. The executive power 
and the legislative power had so effectually impeded each other 
that the state had been of no account in Europe. The king-at- 
arms, who proclaimed William and Mary before Whitehall Gate, 
did in truth announce that this great struggle was over ; that 
there was entire union between the throne and the Parliament ; 
that England, long dependent and degraded, was again a power 



134 THE BILL OF RIGHTS [Ch. IX 

of the first rank ; that the ancient laws by which the prerogative 
was bounded would thenceforth be held as sacred as the pre- 
rogative itself, and would be followed out to all their conse- 
quences ; that the executive administration would be conducted 
in conformity with the sense of the representatives of the nation ; 
and that no reform which the two houses should, after mature 
deliberation, propose, would be obstinately withstood by the 
sovereign. The Declaration of Rights, though it made nothing 
law which had not been law before, contained the germ of the 
law which gave religious freedom to the Dissenter, of the law 
which secured the independence of the judges, of the law which 
limited the duration of Parliaments, of the law which placed the 
liberty of the press under the protection of juries, of the law 
which prohibited the slave-trade, of the law which abolished the 
sacramental test, of the law which relieved the Roman Catholics 
from civil disabilities, of the law which reformed the represen- 
tative system, of every good law which has been passed during 
a hundred and sixty years, of every good law which may here- 
after, in the course of ages, be found necessary to promote the 
public weal, and to satisfy the demands of public opinion. 

T. B. Macaulay, History of England. III. 518. 
J. R. GREEN (1874) 

The Declaration of Rights was turned into the Bill of Rights 
by the Convention which had now become a Parliament, and the 
passing of this measure in 1689 restored to the monarchy the 
character which it had lost under the Tudors and Stuai-ts. . . . 
Since their day [William and Mary] no English sovereign has 
been able to advance any claims to the crown save a claim 
which has rested on a particular clause in a particular Act of 
Parliament. . . . An English monarch is now as much the 
creature of an Act of Parliament as the petty tax-gatherer in 
his realm. 

J. K. Green, Short History of the English People. 688-689. 

TASWELL-LANGMEAD (1S79) 

The Revolution of 1688 marks at once a resting-place and a 
fresh point of departure in the history of the English Constitu- 
tion. The Bill of Rights was a summing up, as it were, and 



1792-1895] CRITICAL COMMENT 135 

final establishment of the Legal bases of the Constitution. 
With Magna Charta and the Petition of Riglit it forms the 
Legal Constitutional Code to which no additions of equal im- 
portance (except the Constitutional provisions of the Act of 
Settlement to be presently noticed) have since been made by 
Legislative enactment. Political progress has indeed, from 
time to time, left its mark on the statute-book, in laws the 
importance of which can hardly be exaggerated. But even the 
greatest of these enactments . . . have been of tlie nature of 
amendments to the machinery of the Constitution, supplying 
defects and correcting abuses, rather than alterations in the 
great Constitutional principles finally established by the 
Revolution. 

T. P. Taswell-Langmead, English Constitutional History. 550. 

HANNIS TAYLOR (1889) 

Ten days after the accession of William and Mary, the 
royal assent was given to a bill which declared the convention 
a parliament, " notwithstanding any fault of writ or writs of 
summons ; " and on the 20th of August, after seven months 
of active work, it took a recess until the 19th of October, 
Then it was that the act was passed which turned the Declara- 
tion of Right into a formal Bill of Rights, whereby two some- 
what important additions were made to the original instrument. 

The Declaration of Right thus put forth was a summing up 
in a dogmatic form of that code of positive law regulating the 
prerogatives of the crown, the privileges of parliament, and the 
liberty of the subject now generally known as " The Law of 
the Constitution," as distinguished from that body of political 
maxims, of silent understandings, undefined either by common 
or statute law, which have been invented since the beginning of 
the reign of William III. 

Hannis Taylor, Origin and Growth of the English Constitution. 11.418-415. 
J. K. HOSMER (1890) 

The monarchy as limited in the thirteenth century had come 
down to the seventeenth century. Parliament had behind it 
a past of four hundred years. The constitution was not 



136 THE BILL OF RIGHTS [Ch. IX 

formulated, but its principles, scattered throughout time- 
honoured statutes, were engraven on the hearts of Englishmen. 
No one of its principles was based upon precedents more 
ancient or more frequent than that Kings reigned by a right 
in no respect differing from that by which knights-of-the-shire 
exercised authority in behalf of their constituents. The Bill of 
Rights simply affirmed this principle. Not a single new right 
was given to the people ; the whole body of English law was 
unchanged ; all was conducted in obedience to the ancient 

formalities. 

J. K. HosMER, ^??/7/o-;S'aarow Freedom. 169. 

STEVENS (1894) 

The Bill of Rights of the time of William and Mary finally 
declares, " that levying money for or to the use of the crown by 
pretence of prerogative without grant of Parliament for longer 
time, or in other manner than the same is or shall be granted, 
is illegal." It is not too much to say, that the principle lies at 
the foundation of all others in the English constitution, and is 
a chief source of modern liberties. 

C. E. Stevens, Sources of the Constitution. 114. 
RANSOME (1895) 

The Declaration of Right, which afterwards was turned into 
an act of parliament under the title of the Bill of Rights, is one 
of the most important documents in English history. It 
brought to a close the great struggle between the king and the 
parliament, which had lasted nearly one hundred years, by 
defining the law on a number of disputed points, all of which 
had, during this period, been matters of protest on the side of 
the parliament. After taking, one by one, the chief unconsti- 
tutional acts of James II., it proceeded to make the following 
declarations: . . . 

The effect of the Revolution was threefold. In the first 
place, it destroyed the Stuart theory of the divine right of 
kings, enunciated in its crudest form by Filmer in his de Patri- 
arclid, by setting up a king and queen who owed their position 
to the choice of parliament. In the second, it gave an 
opportunity for reasserting the principles of the English con- 



1792-1895] CRITICAL COMMENT 137 

stitution which it had been the aim of the Stuarts to set aside. 
In the third, it began what may be called the reign of Parlia- 
ment. Up to the Revolution there is no doubt that the guiding 
force in directing the policy of the nation had been the will of 
the king. Since the Revolution the guiding force has been the 
will of the parliament. 

Ctkil E.ANSOME, Advanced History of England. 664, 665. 



138 ACT OF SETTLEMENT [Ch. X 



Chaptek X 
ACT OF SETTLEMENT 

SUGGESTIONS 

The Act of Settlement itself reads, " An act for the further limitation 
of the Crown and better securing the Rights and Liberties of the 
Subject." The Constitutional Provisions are the articles most impor- 
tant ; they settled the question of the succession once and for all 
time. In 1701 the death of William III.'s only son, a lad of twelve 
years, brought matters to a climax. Tories and Whigs, alike, deemed 
it imperative to act immediately and unanimously. Thus, by pres- 
sure of events, the two Houses passed the famous Act of Settlement 
by which, in case of the death of both Anne and William without 
heirs, the crown was settled upon Sophia, the granddaughter of 
James I. The whole question of the Hanoverian Succession was 
thus placed outside of the political party factions of that reign, and 
all succeeding ones. 

Although the Bill of Rights was supposed in itself to settle the 
question of succession, it was deemed wise in the reign of Queen 
Anne to draw up the Act of Settlement, a statute important, not only 
on account of the group of constitutional provisions embodied in it, 
but also as the " Title deed " of the reigning dynasty, and a veritable 
" Original Contract between the Crown and the People." In study- 
ing the period to which the document forms the central thought, too 
much stress cannot be laid upon the responsibility taken by the gov- 
ernment for the support of the Established Church, and its doctrines. 
The History of the Anglican Church does not fall within the field of 
this volume, but the vitality of State and Church are one. 

For Outlines and Material, see Appendix A. 

DOCUMENT 

Constitutional Provisions in the Act of Settlement (1700-1701) 

Transliter- 1- That whosoever shall hereafter come to the 

ated from the pogggssion of this Crown shall join in communion 
Realm^ VIL with the Church of England as by law established. 
747-750, 2. That in case the Crown and Imperial dignity 



1700-1701] TEXT 139 

of this realm shall hereafter come to any person 
not being a native of this kingdom of England, 
this nation be not obliged to engage in any war 
for the defence of any dominions or territories 
which do not belong to the Crown of England, 
without the consent of Parliament. 

3. That no person who shall hereafter come to Eepealed in 
the possession of this Crown shall go out of the t^^^ first year 
dominions of England, Scotland, or Ireland, with- reign. '' 
out consent of Parliament. 

4. That from and after the time that the further 

limitation by this Act shall take effect, all matters Eepealed by 

and things relating to the well governing of this ^ 4^ne, c. 8, 

6 Anne c 7. 
kingdom, which are properly cognisable in the Privy ' 

Council by the laws and customs of this realm, shall 
be transacted there, and all resolutions taken there- 
upon shall be signed by such of the Privy Council 
as shall advise and consent to the same. 

5. That, after the said limitation shall take effect 

as aforesaid, no person born out of the kingdoms This article 
of England, Scotland, or Ireland, or the dominions helped to 
thereunto belonging (although to be naturalized or parliamen- 
made a denizen — except such as are born of Eng- tary consti- 
lish parents), shall be capable to be of the Privy giu Qf 
Council, or a member of either House of Parliament, Eights. 
or to enjoy any office or place of trust, either civil 
or military, or to have any grant of lands, tene- 
ments, or hereditaments, from the Crown, to him- 
self, or to any other or others in trust for him. 

6. That no person who has an office or place of Eepealed in 
profit under the King, or receives a pension ivova ^^^^^^Y 

the Crown, shall be capable of serving as a member Anne's reign, 
of the House of Commons. 

7. That, after the said limitation shall take effect This article 
„ • 1 • J 5 • • 1 1 7 . aided the 

as aforesaid, judges commissions be made quamdiu future inde- 

se bene gesserint, and their salaries ascertained pendence of 
and established; but upon the address of both ^^^ ^J^gg^jf ® 
Houses of Parliament, it may be lawful to remove were they de- 
them. pendentupon 



140 ACT OF SETTLEMENT [Ch. X 

the king's 8. That no pardon under the Great Seal of Eng- 

Spcfn "'good* land be pleadable to an impeachment by the Com- 
behavior." mons in Parliament. 



CONTEMPORARY EXPOSITION 

BISHOP BURNET (1724) 

The matter that occasioned the longest and warmest debates 
in both houses was an act abjuring the pretended Prince of 
Wales, and forswearing to the king by the title of rightful 
and lawful king, and to his heirs, according to the act of settle- 
ment. . . . The design of this act was to discover to all, both 
at home and abroad, how unanimously the nation concurred in 
abjuring the pretended Prince of Wales. 

Gilbert Burnet, History of His Own Time. 698. 

CRITICAL COMMENT 

BLACKSTONE'S COMMENTARIES (1765) 

The absolute rights of every Englishman, which taken in a 
political and extensive sense, are usually called their liberties, 
and as they are founded on nature and reason, so they are 
co-eval with our form of government. . . . The vigour of our 
free constitution has always delivered the nation from embar- 
rassments . . • and their fundamental articles have been, from 
time to time, asserted in Parliament as often as they were 
thought to be in danger. . . . First, by the G-reat Charter of 
Liberties, which was obtained sword in hand from King John. 
. . . Afterwards by the Statute called Confirmatio Chartarum 
whereby the G-reat Charter is directed to be allowed as the 
common law. . . . Then after a long interval, by the Petition 
of Right, which was a parliamentary declaration of the liber- 
ties of the people. ... By the many salutary laws, particu- 
larly the Habeas Corpus Act, passed under Charles II. To these 
succeeded the Bill of Rights . . . which declaration concludes 
in these remarkable words; "and they do claim, demand, and 
insist upon all and singular the premises, as their undoubted 
rights and liberties." . . . Lastly, these liberties were again 



1765-1895] CRITICAL COMMENT 141 

asserted at the commencement of the present century in 
the Act of Settlement, whereby the crown was limited to his 
present Majesty's illustrious house ; and some new provisions 
were added at the same fortunate era, for better securing our 
religion, laws, and liberties, which the statute declares to be 
" the birthright of the people of England," according to the 
ancient doctrine of the common law. 

Sir Wm. Blackstone, Commentaries on the Laws of England. I. 127-129. 
DICEY (1885) 

The descent of the Crown was varied and finally fixed under 
the Act of Settlement (12 & 13 Will. III. c. 2) ; the Queen 
occupies the throne under a parliamentary title : her claim to 
reign depends upon and is the result of a statute. This is a 
proposition which at the present day no one is inclined either 
to maintain or to dispute ; but a glance at the Statute-book 
shows that not two hundred years ago Parliament had to insist 
strenuously upon the principle of its own lawful supremacy. 

Albert V. Dicey, Introduction to the Studij of the Law of the Constitution. 41. 

RANSOME (1895) 

The circumstance that the Act of Settlement was passed by 
a parliament in which the Tories were predominant, turned out 
to be of great importance, for it committed the Tories, as a 
party, to the principle of the Hanoverian succession, and as it 
was an arrangement heartily approved b}^ the Whigs, the matter 
was thus placed outside the lines of party politics. 

Cyril Eansome, Advanced History of England. 699. 



142 SPIRIT OF COLONIAL RIGHTS [Ch. XI 



Chaptee XI 

SPIRIT OF COLONIAL RIGHTS (1731-1765) 

SUGGESTIONS 

As we approacli the intensive study of the Colonial period, no one 
English statute or New England charter stands out peculiarly as 
representative of the spirit of political freedom, which was a product 
of the system of government in the American Colonies. The Defence 
of the Neiv England Charters, too long to use in full, touches upon 
many subjects not purely constitutional. 

Jeremiah Dummer was an able exponent of New England's princi- 
ples. The existing difficulties which had arisen are as well set forth 
in his " Defence "as in any one document of the period. The con- 
temporary exposition gathered about this document is not in itself so 
closely critical of the articles of the document as with its spirit. From 
this time until after the formation of the Articles of Confederation it 
is the general movement of the times, and not the precise criticism of 
any one document which dominates the thought of the contemporary 
writer. 

For Outlines and Material, see Appendix A. 

DOCUMENT 
Extracts from "A Defence of the New-England Charters" (1721) 

A Defence by Jer[emiah] Dummer. 

%fl^X" To the Right Honourable, the Lord Carteret, one of 

Charters, His Majesty's Principal Secretaries of State. 
1721 3-74. 

' * Invited and encouraged by these advantages, a 

Puritan considerable number of persons dissenting from the 

1628^^^*^°°' discipline of the established church, though agreeing 
with it in doctrine, removed into those remote 
regions, upon no other view than to enjo}' the liberty 
of their consciences without hazard to themselves, 
and offence to others. Thus the colonies went on 



1721] TEXT 143 

increasing and flourishing, in spite of all difficulties, 
till the year 1684, when the city of London lost its 
charter, and most of the other corporations in Eng- Magna 
land, influenced by fear or flattery, complimented £?iyy'^' '^^*'' 
King Charles with a surrender of theirs. In this 
general ruin of charters at home, it could not be 
expected that those in America should escape. It 
was then that a quo warranto was issued against the 
governour and company of the Massachusets Bay, 
and soon after a judgment was given against them 
in Westminster Hall. At the same time Sir Edmund 
Andros, then the King's governour of New England, 
did by order from court repair to Hartford, the The story of 
capital of Connecticut, with armed attendants, and the " Charter- 
forcibly seized their charter for the King. Rhode ^^pon the in- 
Island, finding there was no remed}' to be had, made cident that 
a vertue of necessity, and peaceably resigned theirs. ^®g carried 
But as soon as the news arrived of the happy off and con- 
revolution in England, these two last mentioned cealed when 
governments reassumed their charters, and put taken, 
themselves under the old form of administration, in 
which they have continued ever since. The gov- Accom- 

ernment of the Massachusets, cautious of offending phsned 

. easily upon 

their superiours at home, and considering there was removal of 

a iudgment against them in the court of Chancery, Andros in 

1690. 
though most unfairly and illegaly obtained, did not 

think it adviseable to make this step ; but sent She was too 

agents to court to supplicate, in a humble manner, strong and 
1 • n , • , rn 1 • too proud to 

tile restoration of their charter, lo what misman- adopt the 

agement, or other cause it was owing, that they did conciliatory 

• coiirsG of 

not obtain it, and that this loyal corporation was co^n. and 

the only one either in Old or New England that E. I. 
did not recover its lost liberty under our late glo- 
rious deliverer King William, 'tis now too late, and 
therefore to no purpose, to enquire. A new charter 
was ordered, which the province now has, and is not 
much more than the shadow of the old one. 

[Herewith follow the Propositions set forth in 
the "• Defence," and such charges as were brought 
against the colonists : — J 



144 SPIRIT OF COLONIAL RIGHTS [Ch. XI 

1st Prop. That the charter governments have a 
good and undoubted right to their respective 
charters. 

2nd Prop. That these governments have by no 
misbehaviour forfeited their charters. 

The subjects abroad claim the privilege of Magna 
Charta, which says that no man shall be fined above 
the nature of his offence, and whatever his miscar- 
riage be, a "salvo contenemento fuo" is to be 
observed by the judge. If, therefore, they have 
committed faults, let them be chastized, not de- 
stroyed. Let not their corporations be dissolved for 
any other cause than a failure of their allegiance. 

Charge 1. That they have neglected the defence 
of the inhabitants. 

Charge 2. That they have exercised arbitrary 
power. 

Charge 3. That the Acts of Trade are dis- 
regarded. 

Charge 4. That they have made laws repugnant 
to the laws of Great Britain. 

Charge 5. That the charter colonies will grow 
great and formidable. 

3rd Prop. That it is not the interest of the 
Crown to resume the charters, if forfeited. 

4:th Prop. That it seems inconsistent with jus- 
tice to disfranchize the charter colonies by an act 
of Parliament. 



CONTEMPORARY EXPOSITION 

ANONYMOUS, "PLAIN STATE OF THE ARGUMENT" (1724) 

... It would be inconsistent to say that a King has any 
power at all, but what is derived ultimately from the People 
through the Parliament. 

Whatever deeds the King executes as King: whatever 
government he settles ; whatever charters he grants must, upon 
this account, be subject to the inspection, the controul, the 



1724r-1775] CONTEMPORARY EXPOSITION 145 

alteration which Parliament from time to time may think fit 
to make. 

The settling a colony, is effected by the King's granting a 
charter to a number of people, to inhabit and cultivate a part 
of some new acquired dominions, which hitherto has not had a 
regular government from Great-Britain. But it would be 
absurd to the highest degree to suppose a King to be able to 
establish laws in a colony which a Parliament could not alter. 
If he could, he might also make the same colony independent; 
or, in other words, he might alienate, that is, dispose of a 
part of the British Empire. Thus, if charters granted by the 
King are not liable to the controul of a Parliament, a King of 
Great-Britain might make himself absolute over all new-con- 
quered, new-ceded, or new-discovered countries. He might fix 
what terms he pleased, or put the charters into what hands, and 
for as long a time as he thought best. It must then I think be 
allowed as a certain position that whatever charters our colo- 
nies had granted to them, they are necessaril}'^ subject to the 
Jurisdiction of Parliament. This is equally true whether the 
Jurisdiction of Parliament is expressed in the charter or not. 

The King it is allowed has altered and withdrawn charters. 
Of course, what the King by his delegated power can legally 
do, the Parliament by their supreme jurisdiction may un- 
doubtedly effect. 

The King issues proclamations, and grants charters to all new 
colonies. He determines the mode of government, causes 
duties to be laid on wares, and taxes to be raised for the sup- 
port of the government of each Province. But if Parliament 
chooses to alter the modes both of taxation and government, I 
cannot see the shadow of a reason against the legality of their 
doing it. It may be at any distance of time, and as the state 
of the provinces demands. In the first settling a colony, it is 
sufficient that the King exerts his delegated power, and allows 
the provinces to assess themselves in a particular manner. 
But, when provinces grow large, populous and powerful, the 
supreme jurisdiction of Parliament should always establish the 
mode of government which is to be pursu.ed. 

A Plain State of the Argument between Great Britain and her Colonies. 4-9. 

10 



146 SPIRIT OF COLONIAL RIGHTS [Ch. XI 

ANONYMOUS "PROPOSALS" (1757) 

The first settlements of most of our Colonies in America were 
made by private Adventurers ; many of the Colonies were after- 
wards incorporated hy Charters or Privileges granted by the 
Crown, with a Power to make Laws, and to establish Courts of 
Justice, Forms of Judicature, and the Manner of Proceeding, 
and in some Respects to establish their own Form of Govern- 
ment, under this Limitation, that the Laws or Statutes passed 
by them, should not be repugnant, but as near as possible 
agreeable to the Laws of England. 

And whereas in those remote Colonies situate near many 
barbarous Nations, the Incursions of the Savages, as well as 
other Enemies, Pirates, and Robbers, might probably annoy 
them ; the said Corporations were authorized and impowered to 
levy, muster, and train all Sorts of Men, of what Condition 
soever, and to pursue their Enemies as well by Sea as by Land, 
even without the Limits of their respective Provinces. 

It is also proper to mention, that there are several other 
Colonies that are more immediately dependant on the Crown, 
both with Respect to their Laws and Constitutions ; yet it has 
been the Pleasure of the Crown, to allow them a kind of legis- 
lative Power, under particular Restraints and Limitations. 

Now as all those Colonies may in some Particulars be con- 
sidered, with respect to each other, as so many independant 
States, yet they ought to be considered as one with respect to 
their Mother Country ; and therefore a Union of the Colonies, 
for their general Defence, so framed as to oblige them to act 
jointly, and for the Good of the Whole, can only be made by 
the Wisdom of our Legislature ; and without such an Union, it 
is impossible to make tlie Colonies act with Force and Vigour, 
or to oppose the united Force of the French, altho' much infe- 
rior in Point of Number. 

There is another Thing highly worthy of Attention, viz. that 
tho' the Charter Governments are entitled to make Bye Laws 
for the better ordering their own Domestic Affairs, yet they are 
not entitled to make Laws which may have a general Effect, 
either in obstructing the Trade of this Kingdom, or in laying 
Restraints and Difficulties on the neighbouring Colonies : For 
as their Power in a Legislative Capacity originally flows from 



1724-1775] CONTEMPORARY EXPOSITION 147 

the Crown, under certain Limitations and Restrictions, particu- 
larly that of not passing any Laws, but such as are consistent 
with the Constitution and Laws of this Kingdom, the Intention 
of the Crown must have been, that the Fitness and Expediency 
of such Laws should be only cognizable and determinable by 
the Crown, or by the Legislature in this Kingdom, as it is con- 
ceived the Colonies cannot be proper Judges in their own Case : 
Yet to such Excess have some of the Charter G-overnments pro- 
ceeded, particularly Rhode Island and Connecticut, that they 
have enacted Laws, that no Law shall take Effect in their 
Colonies, unless it be first authenticated or enacted into a Law 
by them ; and thus they have made themselves Judges of the 
Fitness and Expediency of their own Laws, by not transmitting 
them to the proper Boards at Home : Their Charters indeed are 
injudiciously silent on this Head, yet the Thing is in itself not 
only fit and reasonable, but absolutely necessary. 

And therefore if the Affairs of the Colonies are taken into 
Consideration in Parliament, it is humbly conceived, that it 
would be highly fit and proper to regulate this Matter, in order 
to prevent the many Incroachments, which several of the Colo- 
nies have made with respect to Trade, and in the issuing of 
Paper Bills of Currency, which hath often had a publick and a 
general Effect, and greatly injured the Trade and Commerce of 
this Kingdom ; and in Case of an Union amongst the Colonies 
for their mutual Defence, it would make it impossible for them 
to make good the Supplies necessary to support the Charge of 
the Troops which may be sent from one Colony to the Support 
of another, especially as their Bills of Currency differ greatly 
in Value, and that they have no regular Course of Exchange 
between one Province and another : besides, in new Countries 
they cannot have those Resources which may be had in Coun- 
tries w^here Trade and the Course of Exchanges are regularly 
established. 

Proposals for Uniting the English Colonies on the Continent of America. 
14-17. 

GOVERNOR POWNALL (1765) 

Every subject, born within the realm, under the freedom of 
the Government of Great Britain, or by adoption admitted to 



148 SPIRIT OF COLONIAL RIGHTS [Ch. XI 

the same, has an essential, indefeasible right to be governed, 
under such a mode of government as has the unrestrained exer- 
cise of all those powers which form the freedom and rights of 
the constitution; and therefore "the crown cannot establish 
any colony upon, — or contract it within a uarrower scale than 
the subject is entitled to, by the great charters of England." 
The government of each colony must have the same powers, 
and the same extent of powers, that the government of Great 
Britain has, — and must have while it does not act contrary to 
the laws of Great Britain, the same freedom and independence 
of legislature, as the parliament of Great Britain has. This 
right (they say) is founded not only in the general principles of 
the rights of a British subject, but is actually declared, con- 
firmed, or granted to them in the commissions and charters 
which gave them the particular frame of their respective con- 
stitutions. 

Thomas PowiS'ALL, The Administration of the Colonies, pamphlet. 



ANONYMOUS, "AMERICA'S APPEAL" (1775) 

III. Lei US consider the Rights of the AMERICANS subse- 
quent to their Charters and Colony Constitutions. 

As there are certain rights of men, which are unalienable even 
by themselves ; and others which they do not mean to alienate, 
when they enter into civil society. And as power is naturally 
restless, aspiring and insatiable ; it therefore becomes necessary 
in all civil communities (either at their first formation or by 
degrees) that certain great first principles be settled and 
established, determining and bounding the power and preroga- 
tive of the ruler, ascertaining and securing the rights and liber- 
ties of the subjects, as the foundation stamina of the govern- 
ment; which in all civil states is called the constitution, on the 
certainty and permanency of w^hich, the rights of both the 
ruler and the subjects depend ; nor may they be altered or 
changed by ruler or people, but by the whole collective body, or 
a major part at least, nor may they be touched by the legislator ; 
for the moment that alters essentially the constitution, it annihi- 
lates its own existence, its constitutional authority. Not only 
so, but on supposition the legislator might alter it ; such a stretch 



1724-1775] CONTEMPORARY EXPOSITION 149 

of power would be dangerous bej^ond conception ; for could the 
British parliament alter the original principles of the constitu- 
tion, the people might be deprived of their liberties and proper- 
ties, and the parliament become absolute and perpetual ; and 
for redress in such case, should it ever happen, they must 
resort to their native rights, and be justified in making insurrec- 
tion. For when the constitution is violated, they have no 
other remedy; but for all other wrongs and abuses that may 
possibly happen, the constitution remainiug inviolate, the 
people have a remedy thereby. 

... If, therefore, they were to be considered as English 
subjects, by the constitution of that kingdom, they had right 
to enjoy all these privileges ; if not as English subjects, then 
they were theirs without being beholden therefor. In either 
view, therefore, they were entitled to have and enjoy all the 
rights, liberties, and privileges, which, by their several consti- 
tutions, were granted and confirmed to them, antecedent 
thereto. And their constitutions are the original compacts, 
containing the first great principles, or stamina of their govern- 
ments ; combining the members, connecting and subordinating 
them to the King as their supreme head and liege Lord ; also 
prescribing the forms of their several governments, determin- 
ing and bounding the power of the crown over them, within 
proper limits, and ascertaining and securing their rights, juris- 
dictions and liberties ; and are not to be compared to the 
charters of corporations in England (although they are to be 
deemed sacred) which are royal favours granted to particular 
corporations, beyond what are enjoyed by the subjects in com- 
mon ; if they should be forfeited and taken away the membe[r]s 
will still retain the great essential rights of British subjects, 
and these original compacts were made and entered into by the 
King, not only for himself, but expressly for his heirs and suc- 
cessors on the one part, and the colonies, their successors and 
assigns on the other ; whereby the connection was formed, not 
only between the parties then in being, but between the crown 
and the colonies, through all successions of each ; and those 
compacts are permanent and perpetual, as unalterable as 
Magna Charta, or the primary principles of the English con- 
stitution: nor can they be vacated or changed by the king, any 



150 SPIRIT OF COLONIAL RIGHTS [Ch. XI 

more than by the colonies, nor be forfeited by one more than 
the other ; for they are mutually obligatory on both, and are 
the ligaments and bonds that connect the colonies with the 
king of Great-Britain, and the king with them : cut, therefore, 
and dissolve them, and the colonies will become immediately 
disunited from the crown, and the crown from them. Should 
the original parties to these constitutions awake in their tomb, 
and come forth (on a controversy that would awake the dead, 
could the dead be waked) and with united voice testify, that 
this was their original, true intent and meaning, would it not 
be awfully striking and convincing? But we have greater evi- 
dence ; we have their original declaration, made in that day, 
deliberately reduced to writing, and solemnly ratified and con- 
firmed, which is as follows : " We do, for us, our heirs and suc- 
cessors, grant to, &c. and their successors, by these presents, 
that these our letters patent, shall be firm, good, and effectual 
in the law, to all intents, constructions, and purposes whatever, 
according to our true intent and meaning herein before de- 
clared, as shall be construed, reputed, and adjudged most 
favourable on the behalf, and for the best benefit and behoof 
of the grantees, &c., notwithstanding any omissions therein, 
or any statute, act, ordinance, provision, proclamation, or re- 
striction heretofore made, had, enacted, ordained, or provided, 
or any other matter, cause, or thing whatsoever, to the contrary 
thereof, in any wise notwithstanding." 

America's Appeal to the Impartial World. 22-23, 24-26. 

CRITICAL COMMENT 

WALSH (1819) 

It is a remarkable trait in the history of the New England 
settlers, that they did not seek, and appear to have been even 
unwilling to receive assistance from the mother country. . . . 

While the people of New England were providing for their 
own safety, with consummate judgment, and performing prod- 
igies of valour in innumerable rencounters with the enemy, they 
had not even the consolation of escaping the reproach of pusil- 
lanimity, from the mother country. The court of James II. 
besides withholding assistance, on the pretext that it was not 



1819-1891] CRITICAL COMMENT 151 

implored, taxed them with wanting hearts to make use of their 
means of defence. A part of the nation concurred in this in- 
justice ; which, even at this distance of time, causes the breast 
to swell with indignation, when the bold expeditions of these 
colonists, the prodigal effusion of their blood, and the hardships 
of their warfare, are passed in review. This emotion is not 
allayed, as we read, in descending through their history, that 
on the occasion of the bill, introduced into the British Parlia- 
ment, in 1715, for the destruction of all the charter govern- 
ments, the first of the charges brought against them was, " the 
having neglected the defence of the inhabitants ! " . . . 

... In fact, in the very height of the calamity — at the 
moment when New England was putting forth all her strength 
for the retention of the soil, — the merchants and manufacturers 
of the mother country were clamorous, and the committee of 
plantations tasked, for measures of rigour against her, on the 
ground that her "inhabitants had encouraged foreigners to 
traffic with them, and supplied the other plantations with those 
foreign productions which ought only to have been sent to 
England." . . . 

... At a very early period, the mother-country cast the 
reproach which she has constantly repeated, against the colo- 
nists, of provoking the Indian wars, and acquiring the dominion 
of the Indian territory by fraud as well as force. Dummer's 
Defence of the Charters, written at the commencement of the 
last century, treats of this " unworthy aspersion," as the honest 
author styles it, and as he proves it to be by unanswerable sug- 
gestions. With respect to New England particularly, what be 
asserts is susceptible of abundant evidence — that " she sought 
to gain the natives by strict justice in her dealings with them, 
as well as by all the endearments of kindness and humanity ; " 
that " she did not commence hostilities, nor even take up arms 
of defence, until she found by experience that no other means 
would prevail " — and, " that nothing could oblige the Indians 
to peace and friendship, after they conceived a jealousy of the 
growing powers of the English." The congress of the New 
England league was particularly authorized, to prescribe rules 
for the conduct of the colonists towards the natives ; and its 
legislation on this head, was tempered with as much for- 



152 SPIRIT OF COLONIAL RIGHTS [Ch. XI 

bearance and mercy, as a due regard for self-preservation 
would possibly admit. 

Robert Walsh, An Appeal from the Judgments of Great Britain respecting 
the United States of America. 80-85. 



MARSHALL (182'1) 

In Massachusetts, peace abroad was the signal for dissension 
at home. Independent in her opinions and habits, she had 
been accustomed to consider herself rather as a sister king- 
dom, acknowledging one common sovereign with England, 
than as a colony. The election of all the branches of the 
legislature, a principle common to New England, contributed, 
especially while the mother country was occupied with her 
own internal divisions, to nourish these opinions and habits. 
Although the new charter of Massachusetts modified the inde- 
pendence of that colony, by vesting the appointment of the 
governor in the crown, yet the course of thinking which had 
prevailed from the settlement of the country, had gained too 
much strength to be immediately changed ; and Massachusetts 
sought, by private influence over her chief magistrate, to com- 
pensate herself for the loss of his appointment. With this 
view, it had become usual for the general court to testify its 
satisfaction with his conduct by presents ; and this measure 
was also adopted in other colonies. . . . 

In the midst of these contests, governor Shute, who had 
privately solicited and obtained leave to return to England, 
suddenly embarked on board the Sea Horse man of war, leav- 
ing the controversy concerning the extent of the executive 
power, to devolve on the lieutenant governor. 

The house of representatives persisted in asserting its con- 
trol over objects which had been deemed within the province 
of the executive ; but its resolutions were generally negatived 
by the council. This produced some altercation between the 
two branches of the legislature ; but they at length united in 
the passage of a resolution desiring their agent in England to 
take the best measures for protecting the interests of the colony, 
which were believed to be in danger from the representations 
of governor Shute. . . . 



1819-1891] CRITICAL COMMENT 153 

Meanwhile the complaints of governor Shute against the 
house of representatives were heard in England. Every ques- 
tion was decided against the house. In most of them, the 
existing charter was deemed sufficiently explicit ; but, on two 
points, it was thought advisable to have explanatory articles. 
These were, the right of the governor to negative the appoint- 
ment of the speaker, and the right of the house on the subject 
of adjournment. An explanatory charter therefore passed the 
seals, affirming the power claimed by the governor to negative 
a speaker, and denying to the house of representatives the 
right of adjourning itself for a longer time than two days. 
This charter was submitted to the general court, to be accepted 
or refused ; but it was accompanied with the intimation that, 
in the event of its being refused, the whole controversy be- 
tween the governor and house of representatives would be laid 
before Parliament. The conduct of the representatives had 
been so generally condemned in England, as to excite fears 
that an act to vacate the charter, would be the consequence of 
a parliamentary inquiry. The temper of the house too had 
undergone a change. The violence and irritation which marked 
its proceedings in the contest with governor Shute had sub- 
sided ; and a majority determined to accept the New charter. 

John Marshall, A History of the Colonies Planted by the English on the 
Continent of North America. 217-222. 

THWAITES (1891) 

For many years the New England charters were in imminent 
danger of annulment, the purpose apparently being to place the 
colonies under a vice-regal government. Those of Connecticut 
and Rhode Island were the liberal documents granted to them 
early in their career ; electing their own governors, they were 
practically independent of the mother-country, and the general 
movement against the charters had these two especially in view. 
From 1701 to 1749, the charters were seriously menaced at 
various times ; but on each occasion the astute diplomacy of 
the colonial agents in England succeeded in warding off the 
threatened attack. Worthy of especial mention in this con- 
nection are Sir Henry Ashurst, the representative of Connecti- 
cut, and Jeremiah Dummer, his successor. In 1715, at a time 



154 SPIRIT OF COLONIAL RIGHTS [Ch. XI 

when it was proposed to annex Rhode Island and Connecticut 
to the unchartered royal province of New Hampshire, Dummer 
issued his now famous Defence of the American charters, in 
which he forcibly argued, (1) That the colonies "have a 
good and undoubted right to their respective charters," in as 
much as they had been irrevocably granted by the sovereign 
" as premiums for services to be performed.'' (2) That these 
governments ' ' have by no misbehaviour forfeited their char- 
ters," and were in no danger of becoming formidable to the 
motherland. (3) That to repeal the charters would endanger 
colonial prosperity, and " whatever injures the trade of the 
plantations must in proportion affect G-reat Britain, the source 
and centre of their commerce." (4) That the charters should 
be proceeded against in lower courts of justice, not in par- 
liament. Dummer's presentment of the case was regarded by 
friends of the colonies as unanswerable, and was largely instru- 
mental in causing an ultimate abandonment of the ministerial 
attack on the New England charters. 

E. G. Thwaites, The Colonies. 266-267. 



1765] THE STAMP ACT CONTROVERSY — TEXT 155 



Chaptee XII 
THE STAMP ACT CONTROVERSY 

SUGGESTIONS 

With the passage of the Stamp Act in March, 1765, the colonists 
arose in open defiance against royal oppression. The Stamp Act 
Congress was called togetlier in New York, and on October 7th, 1765, 
the document known as the Declaration of Rights and Grievances 
was drawn up and considered by the members. It sets forth the 
grievances of the colonists, it petitions the king for redress, and 
it finally asserts that " taxation cannot be constitutionally imposed 
on them but by their respective legislatures." This Declaration is 
important because it is the first utterance of the body of American 
citizens as a whole. Heretofore no concerted action had taken place ; 
the colonists were, for the first time, acting in a body. 

In studying the period to which this document of the Stamp Act 
Congress belongs, the British established qualities of character — love 
of individual freedom and great loyalty to the King — stand out em- 
phatically. Eleven years later, with the Declaration of Independence, 
the loyalty to the Crown is set aside for the sake of independence of 
action; in 1765, however, the American colonist was a brave British 
subject rebelling against injustice, but striving to fulfil his ideal of 
patriotism to country and fidelity to English law. 

For Outlines and Material, see Appendix A. 

DOCUMENT 

Declaration of Rights and Grievances of the Colonists in America. 
Oct. yth, 1765. 

The members of this congress, sincerely devoted, Joum. First 
with the warmest sentiments of affection and duty ^^^'o'^Tq' 
to his majesty's person and government, inviolably gja,^p ^^^ 
attached to the present happy establishment of the Congress as- 
protestant succession, and with minds deeply im- sembled in 
pressed by a sense of the present and impending a t f" 
misfortunes of the British colonies on this conti- Settlement. 



156 



THE STAMP ACT CONTROVERSY [Ch. XII 



Magna 

Charta, arts. 
Ixi., Ixii. 



See Confir- 
matio Charta 
rum. 



Magna 
Charta. 
Habeas Cor- 
pus Act. 



nent ; having considered as maturely as time would 
permit, the circumstances of said colonies, esteem 
it our indispensable duty to make the following 
declarations, of our humble opinions, respecting the 
most essential rights and liberties of the colonists, 
and of the grievances under which they labor, by 
reason of several late acts of parliament. 

1st. That his majesty's subjects in these colonies, 
owe the same allegiance to the crown of Great 
Britain, that is owing from his subjects born within 
the realm, and all due subordination to that august 
body, the parliament of Great Britain. 

2d. That his majesty's liege subjects in these 
colonies are entitled to all the inherent rights and 
privileges of his natural born subjects within the 
kingdom of Great Britain, 

3d. That it is inseparably essential to the freedom 

of a people, and the undoubted rights of Englishmen, 

■ that no taxes should be imposed on them, but with 

their own consent, given personally, or by their 

representatives. 

4th. That the people of these colonies ai-e not, 
and from their local circumstances, cannot be repre- 
sented in the house of commons in Great Britain. 

5th. That the only representatives of the people 
of these colonies, are persons chosen therein, by 
themselves ; and that no taxes ever have been, or 
can be constitutionally imposed on them, but by 
their respective legislatures. 

6th. That all supplies to the crown, being free 
gifts of the people, it is unreasonable and inconsist- 
ent with the principles and spirit of the British 
constitution, for the people of Great Britain to 
grant to his majesty the property of the colonists. 

7th. That trial by jury is the inherent and 
invaluable right of every British subject in these 
colonies. 

8th. That the late act of parliament, entitled, an 
act for granting and applying certain stamp duties, 



1765] TEXT 157 

and other duties in the British colonies and planta- 
tions in America, &c., by imposing taxes on the 
inhabitants of these colonies, and the said act, afld 
several other acts, by extending the jurisdiction 
of the courts of admiralty beyond its ancient limits, See Declara- 

have a manifest tendency to subvex't the rights and tion of Inde- 

. -^ ° pendence. 

liberties of the colonists. 

9th. That the duties imposed by several late acts 
of parliament, from the peculiar circumstances of 
these colonies, will be extremely burthensome and 
grievous, and from the scarcity of specie, the pay- 
ment of them absolutely impracticable. 

10th. That as the profits of the trade of these 
colonies ultimately centre in Grreat Britain, to pay 
for the manufactures which they are obliged to take 
from thence, they eventually contribute very largely 
to all supplies granted there to the crown. 

11th. That the restrictions imposed by several Navigation 
late acts of parliament, on the trade of these col- A-cts. 
onies, will render them unable to purchase the 
manufactures of Great Britain. 

12th. That the increase, prosperity, and happi- 
ness of these colonies, depend on the full and free 
enjoyment of their rights and liberties, and an inter- 
course, with Great Britain, mutually affectionate 
and advantageous. 

13th. That it is the right of the British subjects This had 
in these colonies, to petition the king or either house continued to 
of parliament. be a custom 

Lastly, That it is the indispensable duty of these g^^^^ects^ 
colonies to the best of sovereigns, to the mother until 1775. 
country, and to themselves, to endeavor, by a loyal 

and dutiful address to his majesty, and humble ^^J'® *^^® • 

cliii6r6GC6 in 
application to both houses of parliament, to procure spirit towards 
the repeal of the act for granting and applying George III. in 
certain stamp duties, of all clauses of any other y^>j'q 
acts of parliament, whereby the jurisdiction of the 
admiralty is extended as aforesaid, and of the 
other late acts for the restriction of the American 
commerce. 



158 THE STAMP ACT CONTROVERSY [Ch. XII 

CONTEMPORARY EXPOSITION 

FRANKLIN (1766) 

Q. Do not you think the people of America would submit to 
pay the stamp-duty if it was moderated ? 

A. No, never, unless compelled by force of arms. 

Q. "What was the temper of America towards G-reat Britain 
before the year 1763? 

A. The best in the world. They submitted willingly to the 
government of the Crown, and paid, in all their courts, obedi- 
ence to the Acts of parliament. Numerous as the people are 
in the several old provinces, they cost you nothing in forts, 
citadels, garrisons or armies, to keep them in subjection. They 
were governed by this country at the expense only of a little 
pen, ink and paper. They were led by a thread. They had 
not only a respect, but an affection, for Great Britain, for its 
laws, its customs, and manners, and even a fondness for its 
fashions, that greatly increased the commerce. Natives of 
Britain were always treated with particular regard ; to be an 
Old England-man was, of itself, a character of some respect, 
and gave a kind of rank among us. 

Q. And what is their temper now? 

A. O, very much altered ! 

Q. Did you ever hear the authority of parliament to make 
laws for America questioned till lately? 

A. The authority of parliament was allowed to be valid in 
all laws except such as should lay internal taxes. It was never 
disputed iu laying duties to regulate commerce. 

Q. In what light did the people of America use to consider 
the parliament of Great Britain? 

A. They considered the parliament as the great bulwark and 
security of their liberties and privileges, and always spoke of it 
with the utmost respect and veneration. 

Arbitrary ministers, they thought, might possibly at times 
attempt to oppress them ; but they relied on it, that parliament 
on application, would always give redress. . . . 



1766-1775] CONTEMPORARY EXPOSITION 159 

Q. And have they not still the same respect for parliament? 

A. No, it is greatly lessened. 

Q. To what causes is that owing? 

A. To a concurrence of causes : the restraints lately laid on 
their trade, by which the bringing of foreign gold and silver 
into the colonies was prevented ; the prohibition of making 
paper money among themselves ; and then demanding a new 
and heav}^ tax by stamps ; taking away, at the same time, 
trials by juries, and refusing to receive and hear their humble 
petitions. 

Q. What is 3'^our opinion of a future tax imposed on the same 
principle with that of the stamp-act ; how would the Americans 
receive it? 

A. Just as they do this. They would not pay it. 

Q. Have not you heard of the resolution of this House, and 
of the House of Lords, asserting the right of parliament relat- 
ing to America, including a power to tax the people there ? 

A. Yes, I have heard of such resolutions. 

Q. What will be the opinion of the Americans on those 
resolutions ? 

A. They will think them unconstitutional and unjust. 

Their opinion is, that when aids to the Crown are wanted, 
they are to be asked of the several assemblies according to the 
old established usage, who will, as they always have done, 
grant them freely. . . . The granting aids to the Crown is the 
only means they have of recommending themselves to their 
Sovereign, and they think it extremely hard and unjust, that a 
body of men, in which they have no representatives should 
make a merit to itself of giving and granting what is not its 
own, but theirs, and deprive them of a right they esteem of the 
utmost value and importance, as it is the security of all their 
other rights. 

Pamphlet: Political^ Miscellaneous, and Philosophical Pieces. 1766. 

JAMES OTIS (1766) 

If it was thought hard that charter privileges should be taken 
away by act of Parliament, is it not much harder to be in part, 
or in whole disfranchised of rights, that have been always 



160 THE STAMP ACT CONTROVERSY [Ch. XII 

thought inherent to a British subject, mainly, to be free from 
all taxes, but what he consents to in person, or by his repre- 
sentative? This right, if it could be traced no higher than 
Magna Charta, is part of the common law, part of a British 
subject's birthright, and as inherent and perpetual as the duty 
of allegiance ; both which have been brought to these colonies, 
and have been hitherto held sacred and inviolable, and I hope 
and trust ever will. It is humbly conceived that the British 
colonists (except only the (jonquered, if any) are, by Magna 
Charta, as well entitled to have a voice in their taxes as the 
snbjects within the realm. . . . The sum of my argument is, 
that civil government is of God, that the administrators of it 
were originally the whole people : . . . that this constitution is 
the most free one, and by far the best, now existing on earth ; 
that by this constitution, every man in the dominion is a free 
man ; that no parts of his Majesty's dominions can be taxed 
without his consent ; that every part has a right to be repre- 
sented in the supreme or some subordinate legislature : that a 
refusal of this would seem to be a contradiction in practice 
to the theory of the constitution: that the colonies are sub- 
ordinate dominions, and are now in such a state, as to make 
it best for the good of the whole, that they should not only 
be continued in the enjoyment of subordinate legislation, but 
be also represented in some proportion to their numbers and 
estates in the grand legislation of the nation ; that this would 
firmly unite all parts of the British empire in the greatest peace 
and prosperity, and render it invulnerable and perpetual. 

James Otis, The Rights of the British Colonies. 65-67. 
SIR WILLIAM KEITH (1767) 

Reasons, humbly offered in Support of the above Proposal to 
extend the Duties on Stampt Paper and Parchment all over the 
British Plantations. The author of the above proposal disclaims 
all views of depriving the British subjects in the plantations of 
any of those rights and privileges which are derived to them as 
natural-born subjects of Great Britain ; but on the other hand, 
he cannot consider that part of his Majesty's subjects abroad 
to be invested with any sort of rights or privileges, that are of 



1766-1775] CONTEMPORARY EXPOSITION 161 

a higher and more independent Nature than what their breth- 
eren of Great-Britain can claim at home. . . . He conceives 
that the subjects there are under no other Supreme Legislature 
but that of Great Britain ; in so much that every subject in 
America as often as his occasions require, has an indubitable 
right to make his humble application to a British Parliament 
where he virtually conceives himself to be truly represented ; 
because the common interest of the British State of Common- 
wealth most certainly includes the subjects of America, equally 
with those of every other part of the Dominion, and so we find 
it to be understood by the Tenor of the famous Act of Naviga- 
tion, as well as other restrictive acts relating to commerce and 
the public revenue. 

Sib William Keith, Subject of Taxing the British Colonists in America, 
pamphlet. 

DOCTOR TUCKER'S " LETTER " (1774) 

Indeed it has been my constant remark, that when men were 
at a loss for solid arguments and matters of fact, in their politi- 
cal disputes, they then had recourse to the spirit of the consti- 
tution as to their last shift, and the only thing to say. An 
American, for example, now insists, that according to the spirit 
of the English Constitutions, he ought not to be taxed without 
his own consent, given either by himself or by a representative 
in Parliament chosen by himself. Why ought he not? The 
constitution says no such thing. But the spirit of it doth; and 
that is as good, perhaps better. Very well ; see then how the 
same spirit will presently wheel about and assert a doctrine 
quite repugnant to the claims and positions of you Americans. 
Magna Charta, for example, is the great foundation of Eng- 
lish liberties, and the basis of the English Constitution. But 
by the spirit of Magna Charta, all taxes laid on by Parliament 
are constitutional, legal taxes. 

Now remember . , . that the late Tax of Duties upon stamps 
was laid on by Parliament and therefore according to your 
own way of reasoning must have been a regular constitutional 
tax. ... So that if you will now plead the spirit of Magna 
Charta against the jurisdiction of Pai'liaraent you will plead 
Magna Charta against itself. 

Dr. Josiah Tuckee, Letter from a Merchant in London to his Nephew in 
America. W 



162 THE STAMP ACT CONTROVERSY [Ch. XII 

EDMUND BURKE (1774) 

I propose, by removing the ground of the difference and 
by restoring the former uns^ispectincj confidence of the colonies in 
the mother country^ to give permanent satisfaction to your people, 
and (far fi-om a scheme of ruling by discord) to reconcile them to 
each other in the same act, and by the bond of the very same 
Interest which reconciles them to British Government. . . . 

If we adopt this mode ; if we mean to conciliate and concede ; 
let us see of what nature the concession ought to be : to ascer- 
tain the nature of our concession we must look at their com- 
plaint. The colonies complain that they have not the charac- 
teristic mark and seal of British freedom. They complain, that 
they are taxed in a parliament in which they are not repre- 
sented. If you mean to satisfy them at all, you must satisfy 
them with regard to this complaint. If you mean to please 
any people, you must give them the boon which they ask ; not 
what you may think better for them, but of a kind totally 
different. Such an act may be a wise regulation, but it is no 
concession. . . . 

My idea, therefoi'e, without considering whether we yield as 
matter of right, or grant as matter of favour, is, to admit the 
people of our colonies into an interest in the constitution ; and, by 
recording that admission in the journals of parliament, to give 
them as strong an assurance as the nature of the thing will 
admit, that we mean forever to adhere to that solemn declara- 
tion of systematic indulgence. . . . 

I . . . wish you to recognize, for the theor}'^, the ancient 
constitutional policy of this kingdom with regard to representa- 
tion, as that policy has been declared in Acts of Parliament ; 
and, as to practice, to return to that mode which a uniform expe- 
rience has marked out to you as best ; and in which you walked 
with security, advantage, and honour until the year 1763. 

My resolutions therefore mean to establish the equity and 
justice of a taxation of America, by grant, and not by imposi- 
tion; . . . and to acknowledge that experience has shown the 
benefits of their grants, and the ftitility of parliamentary taxa- 
tion as a method of supply. 

Edmund Burke, Speech on Conciliation with the Colonies. Burke's Works, 
II. 21-60. 



1766-1775] CONTEMPORARY EXPOSITION 163 



WILLIAM PITT (1774) 

This, my Lords, though uo new doctriue, has always been my 
received and unalterable opinion, and I will carry it to my grave, 
that this country had no right under heaven to tax America. 
It is contrary to all the principles of Justice and civil polity, 
which neither the exigencies of the State, nor even an acqui- 
escence in the taxes, could justify upon any occasion whatever. 
Such proceedings will never meet their wished-for success; 
and instead of adding to their miseries, as the bill now before 
you most undoubtedly does, adopt some lenient measures 
which may lure them to their duty ; proceed like a kind and 
affectionate parent over a child whom he tenderly loves, and 
instead of those harsh and severe proceedings, pass an amnesty 
on all their youthful errors, clasp them once more in your fond 
and affectionate arms ; and I will venture to affirm you will find 
these children worthy of their sire. But should their turbu- 
lence exist after 370ur professed terms of forgiveness, which I 
hope and expect this house will immediately adopt, I will be 
among the foremost of your Lordships to move for such 
measures as will effectually prevent a future relapse, and 
make them feel what it is to provoke a fond and forgiving 
parent! a parent, my Lords, whose welfare has been my 
greatest and most pleasing consolation. This declaration may 
seem unnecessary ; but I will venture to declare, the period is 
not far distant, when she will want the assistance of her most 
distant friends ; but should the all-disposing hand of Provi- 
dence prevent me from affording her my poor assistance, my 
prayers shall be ever for her welfare. — Length of days be 
in her right hand, and in her left riches and honour: 
may her ivays be the ways of pleasantness, and all her paths 
be peace ! t 

William Pitt, Eael of Chatham's Speech in the House of Lords, 27th 
day of Ma}^, 1774. Chatham's Works, XLI. 292. 

t The bill for " Quartering Soldiers " was passed, notwithstanding the 
eloquence of Pitt. 



164 THE STAMP ACT CONTROVERSY [Ch. XII 

JOURNALS OF CONGRESS 1X115) 

Bfenjamin Franklin, Arthur Lee, agents, 
dated, London, February 5th, 1775. 
We think it proper to inform you, that your cause was well 
defended by a considerable number of good and wise men in 
both houses of parliament, though far from being a majority : 
and that many of the commercial and manufacturing parts of 
the nation, concerned in the American trade, have presented, 
or, as we understand, are preparing to present, petitions to 
parliament, declaring their great concern, for the present 
unhappy controversies with America, and praying expressly, or 
in effect, for healing measures, as the proper means of preserv- 
ing their commerce, now greatly suffering or endangered. 

William Bollen, Journals of Congress (May, 1775). I. 75, 76. 



CRITICAL COMMENT 

MACAULAY (1844) 

Grrenville proposed a measure destined to produce a great 
revolution, the effects of which will long be felt by the whole 
human race. 

We speak of the act for imposing stamp duties on the North 
American colonies. . . . The Stamp Act will be remembered as 
long as the globe lasts. , . . 

In the meantime, every mail from America brought alarming 
tidings. The crop which Grenville had sown, his successors 
had now to reap. The colonies were in a state bordering on re- 
bellion. The stamps were burned. The revenue officers were 
tarred and feathered. All trafHc between the discontented 
provinces and the mother country was interrupted. . . . The 
Stamp was indefensible, not because it was beyond constitu- 
tional competence of Parliament, but because it was unjust and 
impolitic, sterile of revenue, and fertile of discontents. 

T. B. Macaulat, The Earl of Chatham (Ed. Rev., Oct. 1844). 
CHAMBERLAIN (1887) 

When the Stamp Act Congress met in New York, October 
7th, 1765, that city was the headquarters of the British forces 



1844-1887] CRITICAL COMMENT 165 

in America, under the command of General Gage. Lieutenant- 
Governor Golden, then filling the executive chair, was in favour 
of the act, and resolved to execute it ; but the Sons of Liberty 
expressed different sentiments. The Congress contained men 
some of whom became celebrated. Timothy Ruggles was 
chosen speaker, but Otis was the leading spirit. In full accord 
with him were the Livingstons of New York, Dickinson of 
Pennsylvania, McKean and Rodney of Delaware, Tilghman of 
Maryland, and Rutland and the elder Lynch of South Carolina. 
New Hampshire, Virginia, North Carolina and Georgia failed 
to send delegates, but not for lack of interest in the cause. 
The Congress prepared a Declaration of Rights and Grievances, 
an address to the King, a memorial to the House of Lords, and 
a petition to the House of Commons, and adjourned on Octo- 
ber 25th. For a clear, accurate, and calm statement of the 
position of the colonies these papers were never surpassed ; nor, 
until the appearance of the Declaration of Independence, was 
any advance made from the ground taken in them. 

Mellen Chamberlain, The Revolution Impending, in Justin Winsoe, 
Narrative and Critical History of America. VI. 30-31. 



166 VIRGINIA BILL OF RIGHTS [Ch. Xni 



Chapter XIII 
VIRGINIA BILL OF RIGHTS 

SUGGESTIONS 

This declaration of rights was adopted by a convention that met in 
Williamsburg, May 6, 1776, and was inserted unchanged in the Vir- 
ginia State Constitutions of 1830, 1850-51, 1864, and with some modi- 
fications in that of 1870. The Bill was drafted by George Mason 
and was slightly changed in one clause at the instance of James 
Madison. 

This document is chosen as typical of the spirit of defiance shown 
in the Revolutionary era, and because it stands as an example of State 
legislation. Every colony became a state by a similar process of 
alteration in its colonial government. The student of history should 
comprehend clearly the theory of constitutional state government, 
which was the child of English common law or citizenship. 

In using this work at this point it would be well for the State Con- 
stitution of the Commonwealth nearest in interest to the school to be 
studied. 

For Outlines and Material, see Appendix A. 

DOCUMENT 

A Declaration of Rights (June lath, 1776) 

Preston's Made by the Representatives of the good People 

207^-20^'^*' ^^ Virginia, assembled in full and free Convention, 

which rights to pertain to them and their posterity 

as the basis and foundation of government. 

I. That all men are by nature equally free and 

independent, and have certain inherent rights, of 
Compare which, when they enter into a state of society, they 
with Declara- cannot by any compact, deprive or divest their 
pendence. posterity ; namel}^, the enjoyment of life and liberty 

with the means of acquiring and possessing prop- 



1776] TEXT 167 

erty, and pursuing and obtaining happiness and 
safety. 

II. That all power is vested in, and consequently Oath of Office- 
derived from, the people ; that magistrates are Const. Art. ii. 
their trustees and servants, and at all times amen- ' 

able to them. 

III. That government is, or ought to be, insti- g^^ gjj^ ^j 

tuted for the common benefit, protection and se- Rights; Act 

curity of the people, nation, or community ; of all '^^ Settle- 
,. ^^', „ "^ ment; also, 

the various modes and torms of government, that Declaration 

is best which is capable of producing the greatest of Indepea- 

dence 
degree of happmess and safety, and is most effect- 
ually secured against the danger of maladminis- 
tration ; and that, when a government shall be 
found inadequate or contrary to these purposes, a 
majority of the community hath an indubitable, 
unalienable and indefeasible right to reform, alter 
or abolish it, in such manner as shall be judged 
most conducive to the public weal. 

IV. That no man, or set of men, are entitled to 
exclusive or separate emoluments or privileges from 
the community but in consideration of public ser- 
vices, which not being descendible, neither ought 
the offices of magistrate, legislator, or judge to be 
hereditary. 

V. That the legislative, executive and judicial 
powers should be separate and distinct ; and that 

the members thereof may be restrained from op- ^j^^ of^hT' 

pi'ession, by feeling and participating the burthens three de- 

of the people, they should, at fixed periods, be pa^rt^.^iits ^ 

•^ ^ -^ ' ^ ' conceived m 

reduced to a private station, return into that body 1776; Const. 

from which they were originally taken, and the -^F^^- '^•■> "•> 
vacancies be supplied by frequent, certain and reg- 
ular elections, in which all, or any part of the 
former members to be again eligible or ineligible, 
as the laws shall dh-ect. 

VI. That all elections ought to be free, and that 
all men having sufficient evidence of permanent 
common interest with, and attachment to the com- 



168 



VIRGINIA BILL OF RIGHTS 



[Ch. xin 



Confirmatio 
Chartarum. 
VI. 



Magna 
Charta, 39- 
40. 

Habeas Cor- 
pus Act. 
Trial by 
Jury. 



Writs of As- 
sistance un- 
warranted. 



See Chapter 
V. 



Const. Art. i., 
Sect. 8 (16). 



muuity have the right of suffrage, and cannot be 
taxed, or deprived of their property for public uses, 
without their own consent, or that of their repre- 
sentatives so elected, nor bound by any law to 
which they have not in like manner assented, for 
the public good. 

VII. That all power of suspending laws, or the 
execution of laws, by any authority, without con- 
sent of the representatives of the people, is injuri- 
ous to their rights, and ought not to be exercised. 

VIII. That in all capital or criminal prosecutions, 
a man hath a right to demand the cause and nature 
of his accusation, to be confronted with the ac- 
cusers and witnesses, to call for evidence in his 
favour, and to a speedy trial by an impartial jury 
of twelve men of his vicinage, without whose unan- 
imous consent he cannot be found guilty ; nor can 
he be compelled to give evidence against himself; 
that no man be deprived of his liberty, except by 
the law of the land or the judgment of his peers. 

IX. That excessive bail ought not to be required, 
nor excessive fines imposed, nor cruel and unusual 
punishments inflicted. 

X. That general warrants, whereby an officer or 
messenger may be commanded to search suspected 
places without evidence of a fact committed, or to 
seize any person or persons not named, or whose 
offence is not particularly desci'ibed and supported 
by evidence, are grievous and oppressive, and ought 
not to be granted. 

XI. That in controversies respecting property, 
and in suits between man and man, the ancient 
trial by jury of twelve men is preferable to any 
other, and ought to be held sacred. 

XII. That the freedom of the press is one of 
the great bulwarks of liberty, and can never be 
restrained but by despotic governments. 

XIII. That a well regulated militia, composed 
of the body of the people, trained to arms, is the 



177f)] CONTEMPORARY EXPOSITION 169 

proper, natural, and safe defence of a free State ; 
that standing armies in time of peace should be 
avoided as dangerous to liberty; and that in all 
cases the military should be under strict subordi- 
nation to, and governed b}', the civil power. 

XIV. That the people have a right to uniform 
government; and therefore, that no government 
separate from or independent of the government 
of Virginia, ought to be erected or established 
within the limits thereof. 

XV. That no free government, or the blessing 
of liberty, can be preserved to any people, but by 
a firm adherence to justice, moderation, temper- 
ance, frugality and virtue, and by a frequent re- 
currence to fundamental principles. 

XVI. That religion, or the duty which we owe 
to our Creator, and the manner of discharging it, 
can be directed only by reason and conviction, not 
by force or violence ; and therefore all men are 

equally entitled to the free exercise of religion, Freedom of 
according to the dictates of conscience ; and that religious 
it is the duty of all to practise Christian forbear- 
ance, love and charity towards each other. 

CONTEMPORARY EXPOSITION 

WASHINGTON (1776) 

To John Augustine Washington, 

Philadelphia, 31 May, 1776. 
Deae Beother, ... I am very glad to find that the Virginia 
Convention have passed so noble a vote, and w4th so much 
unanimity. Things have come to that pass now, as to convince 
us, that we have nothing more to expect from the justice of Great 
Britain. . . . To form a new government requires infinite care 
and unbounded attention : for if the foundation is badly laid, 
the superstructure must be bad. Every man should consider, 
that he is lending his aid to frame a constitution which is to 
render millions happy or miserable, and that a matter of such 
moment cannot be the work of a day. 

Geokge Washington, Works. IV. 105-107. 



170 VIRGINIA BILL OF RIGHTS [Ch. XIII 

JOHN ADAMS (1776) 

As I supposed no mau would think of consolidating this vast 
continent under one national government, we should probably, 
after the example of the Greeks, the Dutch, and the Swiss, 
form a confederacy of States, each of which must have a sep- 
arate government. Tliat the case of Massachusetts was the 
most urgent, but that it could not be long before every other 
Colony must follow her example. That with a view to this 
subject, I had looked into the ancient and modern confederacies 
for examples, but they all appeared to me to have been huddled 
up in a hurry, by a few chiefs. But we had a people of more 
intelligence, curiosity, and enterprise, who must be all con- 
sulted, and we must realize the theories of the wisest writers, 
and invite the people to erect the whole building with their own 
hands, upon the broadest foundation. That this could be done 
only by conventious of representatives chosen by the people in 
the several colonies, in the most exact proportions. That it 
was my opinion that Congress ought now to recommend to the 
people of every Colony to call such conventions immediately, 
and set up governments of their own, under their own author- 
ity ; for the people were the source of all authority and original 
of all power. These were new, strange, and tei-rible doctrines 
to the greatest part of the members, but not a very small num- 
ber heard them with apparent pleasure, and none more than 
Mr. John Rutledge, of South Carolina, and Mr. John Sullivan, 
of New Hampshire. 

Congress, however, ordered the letter to lie on the table for 
further consideration. 

On Saturday, June 3d, the letter from the convention of the 
Massachusetts Bay, dated the 16th of May, being again read, 
the subject was again discussed, and then, 

'•'■Resolved, That a committee of five persons be chosen, to 
consider the same, and report what in their opinion is the 
proper advice to be given to that Convention." 

The following persons were chosen by ballot, to compose 
that committee, namely, Mr. J. Rutledge, Mr. Johnson, Mr. 
Jay, Mr. Wilson, and Mr. Lee. These gentlemen had several 
conferences with the delegates from our State, in the course of 



1776] CONTEMPORARY EXPOSITION 171 

which, I suppose, the hint was suggested, that they adopted in 
their report. 

Mr. Rutledge asked me my opinion of a proper form of gov- 
ernment for a State. I answered him that any form that our 
people would consent to institute, would be better than none, 
even if they placed all power in a house of representatives, and 
they should appoint governors and judges ; but I hoped they 
would be wiser, and preserve the English Constitution in its 
spirit and substance, as far as the circumstances of this country 
required or would admit. That no hereditai-y powers ever had 
existed in America, nor would they, or ought they to be intro- 
duced or proposed ; but that I hoped the three branches of a 
legislature would be preserved, an executive, independent of 
the senate or council, and the house, and above all things, the 
independence of the judges. . . . 

On Wednesday, October 18th, the delegates from New 
Hampshire laid before the Congress a part of the instructions 
delivered to them by their Colony, in these words : — 

" We would have you immediately use your utmost endeavours 
to obtain the advice and direction of the Congress, with respect 
to a method for our administering justice, and regulating our 
civil police. We press you not to delay this matter, as its 
being done speedily will probably prevent the greatest con- 
fusion among us." . . . 

Although the opposition was still inveterate, many members 
of Congress began to hear me with more patience, and some 
began to ask me civil questions. ' ' How can the people insti- 
tute governments?" My answer was, "By conventions of 
representatives, freely, fairly, and proportionably chosen." 
"When the convention has fabricated a government, or a con- 
stitution rather, how do we know the people will submit to it ? " 
"If there is any doubt of that, the convention may send out 
their project of a constitution, to the people in their several 
towns, counties, or districts, and the people may make the 
acceptance of it their own act." "But the people know noth- 
ing about constitutions." "I believe you are much mistaken 
in that supposition ; if you are not, they will not oppose a plan 
prepared by their own chosen friends ; but I believe that in 
every considerable portion of the people, there will be found 



172 VIRGINIA BILL OF RIGHTS [Ch. XIII 

some men, who will understand the subject as well as their 
representatives, and these will assist in enlightening the rest." 
"But what plan of a government would you advise?" "A 
plan as nearly resembling the government under which we were 
born, and have lived, as the circumstances of the country will 
admit. Kings we never had among us. Nobles we never had. 
Nothing hereditary ever existed in the country ; nor will the 
country require or admit of any such thing. But governors 
and councils we have always had, as well as representatives. 
A legislature in three branches ought to be preserved, and 
independent judges." "Where and how will you get your 
governors and councils?" "By elections." "How, — who 
shall elect?" " The representatives of the people in a conven- 
tion will be the best qualified to contrive a mode." 

After all these discussions and interrogatories. Congress was 
not prepared nor disposed to do anything as yet. They must 
consider farther. 

' ' Resolved, That the consideration of this matter be referred 
to Monday next." 

Monday arrived, and Tuesday and Wednesday passed over, 
and Congress not yet willing to do anything. 

. . . Yet they could not be brought to agree upon a report and 
to bring it forward in Congress, till Friday, November 3rd, when 
Congress, taking into consideration the report of the committee 
on the New Hampshire instructions, after another long delibe- 
ration and debate, — 

" Resolved, That it be recommended to the Provincial Con- 
vention of New Hampshire, to call a full and free representa- 
tion of the people, and that the representatives, if they think 
it necessary, establish such a form of government, as in their 
judgment will best produce the happiness of the people, and 
most effectually secure peace and good order in the Province, 
during the continuance of the present dispute between Great 
Britain and the Colonies." 

By this time I mortally hated the words, " Provinces," " Col- 
onies," and " Mother Country," and strove to get them out of 
the report. The last was indeed left out, but the other two 
were retained even by this committee, who were all as high 



1887-1898] CRITICAL COMMENT 173 

Americans as any in the house, unless Mr. Gadsden should be 
excepted. Nevertheless, I thought this resolution a triumph, 
and a most important point gained. 

Mr. John Rutledge was now completely with us in our desire 
of revolutionizing all the governments, and he brought forward 
immediately some representations from his own State, when 

" Congress, then taking into consideration the State of South 
Carolina, and sundry papers relative thereto being read and 
considered, 

' ' Resolved, That a committee of five be appointed to take the 
same into consideration, and report what in their opinion is 
necessary to be done. The members chosen, Mr. Harrison, 
Mr. Bullock, Mr. Hooper, Mr. Chase, and Mr. S. Adams." 

On November 4th, 

"The committee appointed to take into consideration the 
State of South Carolina, brought in their report, which being 
read," a number of resolutions passed, the last of which will be 
found in page 235 of the Journals, at the bottom. 

" jResoZyed, That if the Convention of South Carolina shall 
find it necessary to establish a form of government in that 
Colony, it be recommended to that Convention to call a full 
and free representation of the people, and that the said repre- 
sentatives, if they think it necessary, shall establish such a 
form of government as in their judgment will produce the hap- 
piness of the people, and most eifectually secure peace and 
good order in the Colony, during the continuance of the present 
dispute between Great Britain and the Colonies. 

John Adams, Works. III. 17-22. 

CRITICAL COMMENT 

HITCHCOCK (1887) 

But these constitutional enactments are also social and politi- 
cal phenomena. "VVe may study them in order to learn, not 
only what they prescribe, but, so to speak, what they reveal. 
As such phenomena they have, — not only for the student of 
historical jurisprudence but for every thoughtful man, con- 
cerned for the future of his country, — a significance quite 
distinct from that which they have either for the officer who 



174 VIRGINIA BILL OF RIGHTS [Ch. XIII 

must execute, or for the citizen who must obey them. , . . They 
signify and express, not the '■'■ civium ardor prava jubentium" 
but the conclusions of a free people as to what changes in 
their oi^ganic law will best promote the common welfare. 

Henky Hitchcock, Americati State Constitutions. 8, 9. 

J. A. JAMESON (1887) 

The mode adopted by Virginia was similar to that followed 
in those colonies (N. H. and S. C). The Provincial Convention 
elected in April, 1776, to continue in office one year, met at 
Williamsburg on the 6th of May thereafter, and on the 29th of 
June following framed and established the first constitution of 
Virginia. This Convention was elected as a revolutionary 
assembly, to carry on, as Mr. Jefferson expresses it, " the ordi- 
nary business of the government," in default of the House of 
Burgesses, and to " call forth the powers of the State for the 
maintenance of the opposition to Great Britain." It was not 
pretended, if tlie same authority is to be credited, that, in 
assuming to frame a constitution, the Convention had any 
warrant or authority whatever, except such as enured to it by 
virtue of its revolutionary character. In so doing, then, it is 
regarded, not as a constitutional, but as a Revolutionary Con- 
vention. It was not empowered to discharge the special and 
high function of enacting a fundamental code, by any law or 
by the express desire of the people, but acted on its own 
authority : and it did not deign to take upon its work the sense 
of the people whom it pretended to represent. 

John A. Jameson, Treatise on Constitutional Conventions. 125, 126. 

GEO. T. CURTIS (1889) 

It is a singular circumstance that, while the Revolutionary 
government was left to conduct the great affairs of the con- 
tinent through the mere instrumentality of a congress of dele- 
gates, and was thus failing for the want of departments and 
powers, the states were engaged in applying those great prin- 
ciples in the organization and construction of popular govern- 
ments, under which they may be formed with rapidity and 
ease, and which are capable of the most varied adaptation to the 
circumstances and wants of a free people. 



1887-1898] CRITICAL COMMENT 175 

. . . Fortunately, as we have seen, the previous constitutions 
of all the colonies had accustomed the people, to a great ex- 
tent, to the business of government ; and when the recommen- 
dation of the Continental Congress to the several colonies to 
adopt such governments as would best conduce to their happi- 
ness and safety was made immediately after the first effusion 
of blood, it was addressed to civil societies, in which the 
people had, in different modes, been long accustomed to wit- 
ness and to exercise the functions of legislation, and in all of 
which there were established forms of law, of judicature, and 
of executive power. 

The new political situation in which they now found them- 
selves required, in many of the colonies, but little departure 
from these ancient institutions. The chief innovation necessary 
was to bring into practical working the authority of the people 
in place of that of the crown of England, as the source of all 
political power. The changes requisite to effect this were of 
course to be made at once ; the materials for these changes 
existed everywhere, in the representative institutions which 
had long been a part of the system of every colony since the 
first settlement of the country. . . . The foundations . . . for 
popular governments existed in all the colonies, and furnished 
the means for substituting the new source of political power, 
the will of the people, in the place of that of an external 
sovereign. 

But there were other materials, also, for the formation of 
regular and balanced governments, with nearer approaches to 
perfection and with far greater completeness than a mere 
democracy can afford to any people, however familiar they may 
be with the exercise and the practice of government. The 
people of these colonies had been so trained as to be able to 
apply those principles in the construction and operation of 
government which enable it to work freely, successfully, and 
wisely, while resting on a popular basis. They were able to 
see that the whole of what is meant and understood by govern- 
ment is comprehended in the existence and due operation of 
legislative, executive, and judicial powers. They had lived 
under political arrangements, in which these powers had been 
distributed so as to keep them for the most part distinct from 



176 VIRGINIA BILL OF RIGHTS [Ch. XIII 

each other, and so as to mark the proper limitations of each. 
If, in some instances, the same individuals had exercised more 
than one of these powers, the distinctions between the depart- 
ments, and the principles which ought to regulate such distinc- 
tions, had become known. The people of the colonies, in 
general, therefore, saw that nothing was so important, in con- 
structing a government with popular institutions, as to balance 
each of these departments against the others, so as to leave to 
neither of them uncontrolled and irresponsible power. 

. . . Three of the colonies, namely, New Hampshire, South 
Carolina, and Virginia, proceeded to form constitutions of gov- 
ernment before the Declaration of Independence was adopted, 
under a special recommendation given to each of them by 
Congress, in the latter part of the year 1775, addressed to the 
provincial convention, advising them "to call a full and free 
representation of the people, to establish such a form of gov- 
ernment as in their judgment will best promote the happiness 
of the people, and most effectually secure good order in the 
province during the continuance of the present dispute between 
Great Britain and the colonies." . . . On the 15th of May, 
1776, the Provincial Convention of Virginia proceeded to 
prepare a declaration of rights and a constitution. The latter 
declared that the legislative, executive, and judiciary depart- 
ments ought to be distinct and separate, and divided the 
legislative department into two branches, the house of delegates 
and the senate, to be called "the General Assembly of Vir- 
ginia." The members of the house of delegates were chosen 
from each county, and one from the city of Williamsburg, and 
one from the borough of Norfolk. The senate consisted of 
twenty-four members, chosen from as many districts. A gov- 
ernor and council of state were chosen annually by joint ballot 
of both houses. The legislature appointed the judges, who 
were commissioned by the governor, and held their offices dur- 
ing good behaviour. 

G. T. Ctjrtis, Constitutional History} I. 80-84. 

BORGEAUD (1892) 

European critics of American democracy almost always make 
the mistake of looking only at the Federal Constitution of the 
1 Copyright, 1889, by George Ticknor Curtis. 



1887-1898] CRITICAL COMMENT 177 

United States and of leaving unexamined the institutions of 
the several States. It may be said, in their defence, that the 
Americans themselves are the cause of this, since, for a cen- 
tury, they have devoted all their zeal to the history and criti- 
cism of Federal public law and are only now beginning the 
systematic study of their local constitutions. But the mistake, 
though explicable and pardonable, is none the less grave. 
Recently two masters of political science, M. E. Boutmy, in 
France, and Mr. James Bryce, in England, have called atten- 
tion to its unhappy consequences. They have easily shown that 
the institutions of the States are the edifice itself of which the 
Federal constitution is but the completion, that they are the 
real foundation of the national institutions, and that American 
democracy cannot be understood or judged apart from the 
environment in which its development has taken place. 

Charles Borgeaud, Adoption and Amendment of Constitutions in Europe 
and America, translated by C. D. Hazen. 137. 

BRTCE (189G) 

When, in 1776, the thirteen colonies threw off their allegiance 
to King George III., and declared themselves independent 
States, the colonial charter naturally became the State constitu- 
tion. In most cases it was remodelled, with large alterations, 
by the revolting colony. But in three states it was maintained 
unchanged, except, of course, so far as Crown authority was 
concerned, viz., in Massachusetts till 1780, in Connecticut till 
1818, and in Rhode Island till 1842. The other States ad- 
mitted to the Union in addition to the original thirteen, have 
entered it as organized self-governing communities, with their 
constitutions already made b}' their respective peoples. Each 
Act of Congress which admits a new State admits it as a sub- 
sisting commonwealth, sometimes empowering its people to 
meet and enact a constitution for themselves (subject to con- 
ditions mentioned in the Act), sometimes accepting and con- 
firming a constitution so already made by the people. Congress 
may impose conditions which the State constitution must 
fulfil ; and in admitting the six newest States has affected to 
retain the power of maintaining these conditions in force. 
But the authority of the State constitutions does not flow from 

12 



178 VIRGINIA BILL OF RIGHTS [Ch. XHI 

Congress, but from acceptance by the citizens of the States for 
whicii they are made. Of these instruments, therefore, no less 
than of the constitutions of the thirteen original States, we may 
say that although subsequent in date to the Federal Constitu- 
tion, they are, so far as each State is concerned, de jure prior 
to it. Their authority over their own citizens is nowise derived 
from it. Nor is this a mere piece of technical law. The anti- 
quity of the older States as separate commonwealths, running 
back into the heroic ages of the first colonization of America 
and the days of the Eevolutionary War, is a potent source of 
the local patriotism of their inhabitants, and gives these States 
a sense of historic growth and Indwelling corporate life which 
they could not have possessed had they been the mere creatures 
of the Federal Government. 

James Betce, The American Commonwealth} 300, 301. 

SCHOULER (1S97) 

Expressed in concise and admirable language, the Virginia 
Bill of Rights (whose sixteen sections we have thus condensed) 
was broad and universal in sentiment, breathing the spirit of 
human brotherhood, without a hint of race or class subjection. 
The declaration served well for example to the other twelve 
states ; and, so proud of this instrument have Virginians re- 
mained that they affixed it unchanged to their new constitution 
of 1830, and, amending it but slightly for the constitution of 
1850, incorporated it once more intact in the new framework 
of 1864. 

James Schoulee, Constitutional Studies. III. 33, 34. 

FISHER (1897) 

Virginia's constitution was finished June 29. 1776, — a few 
months after South Carolina's. It was made by a convention 
of forty-five members of the house of burgesses, and has pre- 
fixed to it a bill of rights, adopted June 12, 1776, the first part 
of which has the language of the opening paragraph of the 
Declaration of Independence. The rest of the bill of rights 
is remarkable as being very full and complete and containing 
more provisions than had ever appeared before in the colonies. 
Besides the ordinary bill-of-rights provisions, the bill contains 
^ Copyright, 1896, by the Macmillan Co. 



1887-1898] CRITICAL COMMENT 179 

some political maxims, and among these is the first statement in 
our constitutions of the principle that the legislative, executive, 
and judicial departments of government should be separate, 
and that the same persons should never exercise the powers 
of any two of them. 

S. G. Fisher, The Evolution of the Constitution of the United States. 75. 

THORPE (189S) 

Before the close of the seventeenth century America was 
at the threshold of a new civil experience, the distinguishing 
feature of which was the formulation of the " ancient and un- 
doubted rights of the people of the colonies." A like process 
was going on in England. The famous Bill of Rights of 1688 
is contemporaneous with like measures in the colonies. Ameri- 
cans are more familiar with the political speculations that 
dominated the country in 1776 than with those equal in in- 
fluence, that dominated it nearly a centurj^ earlier. One clause 
of the English bill of 1688 survives in its original form in the 
Constitution of the United States, and in many State constitu- 
tions ; but it was not accompanied in the seventeenth century 
by those provisions with which it is now associated. . . . 

When the transition from colonies to commonwealths came, 
it seems, at first glance, almost instantaneous. The State con- 
stitutions of 1776 seem struck off at a single stroke in a sense 
that is not true of the national Constitution. A little reflection, 
however, will demonstrate that the constitutions, state and 
national, which distinguish America during the last quarter 
of the eighteenth century are in no sense political miracles or 
the product of chance or sudden ideas. These instruments 
must be taken, in the aggregate, as the written form of a 
political organism long growing and essentially homogeneous. 
They give the political fabric a common pattern. They regis- 
ter the civil experience, not of the colonists only, but of the 
people of other and earlier times. They may be called chap- 
ters in the Bible of politics contributed by democracy in 
America. Therefore, they must be considered together as a 
political unit, whose details are local applications of a few 
common principles contained in the bill of rights 

The typical declaration is that of Virginia of 1776, which, by 



180 VIRGINIA BILL OF RIGHTS [Ch. XTII 

repeated adoption, has long since become common civil property. 
It consists of sixteen articles, all of which rest for authority on 
the doctrine of natural rights proclaimed in the opening clause. 
Men cannot be deprived of their rights, nor can they deprive 
their posterity of them ; all power is vested in the people, 
and is derived from them. Consequently, their representatives 
are their trustees and servants, and at all times amenable to 
them. As government is instituted for the common benefit, 
it must be organized in the form that is best " capable of pro- 
ducing the greatest degree of happiness and safety, and is 
most effectually secured against the dangers of maladminis- 
tration." . . . The next State to act was Virginia, which, in 
April, 1776, elected forty-five delegates to a provincial con- 
vention. They met at Williamsburg on the 6th of the follow- 
ing May, and on the 29th of June promulgated the first con- 
stitution of the commonwealth. This convention, like that 
of South Carolina of 1778, was a Revolutionary gathering, 
chosen to supplant the ancient House of Burgesses, and to 
establish a government that would oi-ganize all the forces of 
the state in opposition to Great Britain. It was not specifi- 
cally empowered to make a constitution. The frame of gov- 
ernment it adopted was destined, however, to continue in force 
until 1830. This constitution is famed for its bill of rights, 
drawn up by George Mason. 

F. N. Thorpe, Constitutional History of the American Peopled 34,35, 37-49. 

CHANNING (1898) 

The State Constitutions, 1775, 1776, — Another important 
step in bringing about the change in sentiment noted in the 
preceding section, was the necessity for making new provisions 
for government in the several colonies. In some cases, as 
in Virginia and New Hampshire, the departure of the royal 
governors left the people without any government; in other 
cases, as in Massachusetts, resistance to the royal authorities 
made new arrangements necessary. In the last-named colony, 
a revolutionary body termed the Provincial Congress had as- 
sumed charge of the government of the province. The people, 
however, were restless, and those in power turned to the Con- 
tinental Congress for advice. On June 9, 1775, that body 
1 Copyright, 1898, by Harper & Brothers. 



1887-1898] CRITICAL COMMENT 181 

voted, that as no obedience was due to the act of Parliament 
altering the charter of the colony of Massachusetts, nor to a 
governor who would not obey the direction thereof, he should 
be considered as absent and the colony were advised to pro- 
ceed under the charter without a governor "until a governor 
of his Majesty's appointment will consent to govern the colony 
according to the charter." . . . Among the first colonies to act 
under this suggestion was Virginia, which was at the moment 
governed by a convention elected by the people. It adopted 
(June, 1776) a constitution which consisted of three parts: a 
Bill of Rights by George Mason, a Declaration of Indepen- 
dence by Thomas Jefferson, and a Frame of Government. 
The first of these contains an admirable exposition of the 
American theory of government, equalled in that respect only 
by the Declaration of Independence of July, 1776, and by the 
Bill of Rights drawn by John Adams and prefixed to the 
Massachusetts constitution of 1780. The clause in the Vir- 
ginia Bill of Rights declaring for freedom of religion was the 
earliest enunciation on that subject during the Revolutionary 
era ; it was probably the work of Madison and Patrick Henry. 
None of these early constitutions was submitted to the people 
for ratification, with the exception of that of Massachusetts 
(1780), which was also drafted by a body especially chosen 
by the people for that purpose. 

Edward Channing, Students' History of the United States. 198, 199, 200. 



182 DECLARATION OF INDEPENDENCE [Ch. XIV 



Chapter XIV 

DECLARATION OF INDEPENDENCE 

SUGGESTIONS 

The Second Continental Congress met in Ptiiladelphia, in the State 
House (Independence Hall), May 10, 1775. The King's Proclama- 
tion declaring the Colonies in rebellion, and calling for volunteers 
to force them to submit to taxation without representation, and other 
unjust measures, finally convinced the delegates to Congress of the 
impossibility of our continuing our allegiance to the English Crown. 
This document was authorized by the staunch patriots who met 
together in Philadelphia, in June of 1776, to consider the resolution of 
the 7th, when the Second Continental Congress resolved " That these 
United Colonies are, and of right ought to be, free and independent 
states." John Adams of Massachusetts seconded the motion. Later, 
a committee of five — Thomas Jefferson of Virginia, John Adarns of 
Massachusetts, Benjamin Franklin of Pennsylvania, Roger Sherman 
of Connecticut, and Robert R. Livingston of New York — was 
appointed to draft the Declaration of Independence. Jefferson drew 
up the paper, though a few alterations were made in it by the Com- 
mittee and by Congress. It was adopted on the evening of July 4, 
1776, and signed by John Hancock, President of Congress, and 
Charles Thomson, Secretary. On August 2, 1776, it was signed by 
the members, representing the thirteen states. 

The text and comments upon the famous Declaration of Independ- 
ence are but a beginning for the intensive work that may be done 
upon the document. Each article may be illustrated by referring to 
the earlier pieces ; and it will be well for each student who is making 
a thorough study of the subject to look for fresh examples which will 
strengthen the letter of this declaration. Here again, as in the period 
of the Stuarts, we find a group of men standing behind the event and 
its issue, who in themselves were not only exponents of their era, but 
who helped to shape it. The principles laid down by these patriots 
formed a basis for civil and federal ideas which influenced the con- 
stitutional development of succeeding generations. 

For Outlines and Material, see Appendix A. 



1776J TEXT 183 

DOCUMENT 
The Declaration of Independence 
In congress, July 4, 1776. 
Wqz unanimous ©eclaration of tije tijinecn uniteii Facsimile of 

States of America. the original 

document in 
SHfjen in the Course of human events, it becomes *^^® Depart- 
necessary for one people to dissolve the political stite, Wash- 
bands which have connected them with another, and mgton. 
to assume among the powers of the earth, the 
separate and equal station to which the Laws of 
Nature and of Nature's God entitle them, a decent 
respect to the opinions of mankind requires that 
they should declare the causes which impel them to 
the separation. We hold these truths to be I. Statement 

self-evident, that all men are created equal, that o^'' s®^^- 
j.\ ■ 1 1 1 ,, . /-N . \ . evident 

they are endowed by then- Creator with certani truths," 

unalienable Rights, that among these are Life, many of 
Liberty and the pursuit of Happiness, — That to bedded in 
secure these rights. Governments are instituted the English 
among Men, deriving their just powers from the see"v"irc?"*^' 
consent of the governed, — That whenever any Bill of 
Form of Government becomes destructive of these Riglits, 1776. 
ends, it is the Right of the People to alter or to 
abolish it, and to institute new Government, laying 
its foundation on such principles and organizing its 
powers in such form, as to them shall seem most 
likely to effect their Safety and Happiness. — Prud- 
ence, indeed, will dictate that Governments long 
established should not be changed for light and 
transient causes ; and accordingly all experience 
hath shewn, that mankind are more disposed to 
suffer, while evils are sufferable, than to right them- 
selves by abolishing the forms to which they are 
accustomed. But when a long train of abuses and 
usurpations, pursuing invariably the same Object 
evinces a design to reduce them under absolute 



184 



DECLARATION OF INDEPENDENCE [Ch. XIV 



List of 
Grievances. 



See Magna 
Charta, art. 
xvii. 



Assembly in 
Virs^inia, 



England 
commanded 
Colonial 
Governors to 
grant no 
more land, 
and to allow 



Despotism, it is their right, it is their duty, to throw 
off such Government, and to provide new Guards 

for their future security. Such has been the 

patient sufferance of these Colonies ; and such is 
now the necessity which constrains them to alter 
their former Systems of Government. The history 
of the present King of Great Britain is a history of 
repeated injuries and usurpations, all having in 
direct object the establishment of an absolute 
Tyranny over these States. To prove this, let Facts 

be submitted to a candid world. He has refused 

his Assent to Laws, the most wholesome and neces- 
sary for the public good. He has forbidden his 

Governors to pass Laws of immediate and pressing 
importance, unless suspended in their operation till 
his Assent should be obtained ; and when so sus- 
pended, he has utterly neglected to attend to them. 

He has refused to pass other Laws for the 

accommodation of large districts of people, unless 
those people would relinquish the right of Represen- 
tation in the Legislature, a right inestimable to them 

and formidable to tyrants only. He has called 

together legislative bodies at places unusual, uncom- 
fortable, and distant from the depository of their 
public Records, for the sole purpose of fatiguing 

them into compliance with his measures. He 

has dissolved Representative Houses repeatedly, for 
opposing with manly firmness his invasions on the 

rights of the people. He has refused for a long 

time, after such dissolutions, to cause others to be 
elected ; whereby the Legislative powers, incapable 
of Annihilation, have returned to the People at large 
for their exercise ; the State remaining in the mean 
time exposed to all the dangers of invasion from 
without, and convulsions within. He has en- 
deavoured to prevent the population of these States ; 
for that purpose obstructing the Laws for Naturali- 
zation of Foreigners ; refusing to pass others to 
encourage their migration hither, and raising the 



1776] TEXT 185 

conditions of new Appropriations of Lands. no settle- 
He has obstructed the Administration of Justice, by ^^^^^ ^'^^^ 
refusing his Assent to Laws for establishing Judi- "sources of 

ciary powers. He has made Judges dependent Atlantic 

on his Will alone, for the tenure of their offices, and liiyers " 

the amount and payment of their salaries. He 

has erected a multitude of New Offices, and sent 
hither swarms of Officers to harass our people, and 

eat out their substance. He has kept among jSo called 

us, in times of peace, Standing Armies without the '' Quartering 

Consent of our legislatures. He has affected to 

render the Military independent of and superior to 

the Civil power. He has combined with others Parliament. 

to subject us to a jurisdiction foreign to our consti- 
tution, and unacknowledged by our laws ; giving 
his Assent to their Acts of pretended Legislation : 

For quartering large bodies of armed troops 

among us : For protecting them, by a mock 

Trial, from punishment for any Murders which they 
should commit on the Inhabitants of these States : 

For cutting off our Trade with all parts of the Port Bill. 

world : ■ For imposing Taxes on us without our Stamp Act, 

Consent: For depriving us in many cases, of Tea Tax, etc. 

the benefits of Trial by Jury : For transporting changed to 

us beyond Seas to be tried for pretended offences: Vice-Admi- 

For abolishing the free System of English Laws ^'altycourt. 

. See Trans- 

in a neighbouring Province, establishing therein an portation 

Arbitrary government, and enlarging its Boundaries Bill. 

so as to render it at once an example and fit instru- Qji*^^^^ ■^^^^' 

17 (4. 

ment for introducing the same absolute rule into 

these Colonies : For taking away our Charters, 

abolishing our most valuable Laws, and altering Conn., K. I., 

fundamentally the Forms of our Governments. Mass., etc. 

For suspending our own Legislatures, and declaring Legislatures 

themselves invested with yjower to legislate for us of Va., Md., 

Ga Mass. 
in all cases whatsoever. — — He has abdicated ]^_ y_ '' 

Grovernment here, by declaring us out of his Protec- Arrival of 

tion and waging War against us : He has plun- Grage and 

forces in 
dered our seas, ravaged our Coasts, burnt our towns, Boston. 



186 



DECLARATION OF INDEPENDENCE [Ch. XIV 



Lexington, and destroyed the lives of our people 

Concord, and 

Bunker Hill. 

Hessian 

soldiers. 



He is all 



This griev- 
ance was not 
settled until 
the War of 

1812. 

The Conti- 
nental Con- 
gress had 
also raised 
Indians to 
fight the 
British, 1775. 

Va. Resolu- 
tions 1765, 
Declaration 
of Rights and 
Grievances, 
1765. 



Declaration 
of Rights, 
1774. 



Statement 
of Inde- 
pendence. 



this time transporting large Armies of foreign Mer- 
cenaries to compleat the w^orks of death, desolation 
and tyranny, already begun with circumstances of 
Cruelty & perfidy scarcely paralleled in the most 
barbarous ages, and totally unworthy the Head of 

a civilized nation. He has constrained our fellow 

Citizens taken Captive on the high Seas to bear 
Arms against their Countrj', to become the execu- 
tioners of their friends and Brethren, or to fall 

themselves by their Hands. He has excited 

domestic insurrections amongst us, and has endeav- 
oured to bring on the inhabitants of our frontiers, 
the merciless Indian Savages, whose known rule of 
warfare, is an undistinguished destruction of all 

ages, sexes and conditions. In every stage of 

these Oppressions We have Petitioned for Redress in 
the most humble terms : Our repeated Petitions have 
been answered only by repeated injury. A Prince, 
whose character is thus marked by every act which 
may define a Tyrant, is unfit to be the ruler of a free 

People. Nor have We been wanting in attention 

to our Brittish brethren. We have warned them from 
time to time of attempts by their legislature to 
extend an unwarrantable jurisdiction over us. We 
have reminded them of the circumstances of our 
emigration and settlement here. We have appealed 
to their native justice and magnanimity, and we 
have conjured them by the ties of our common kin- 
dred to disavow these usurpations, which, would 
inevitably interrupt our connections and correspond- 
ence. They too have been deaf to the voice of 
justice and of consanguinity. We must, therefore, 
acquiesce in the necessity, which denounces our 
Separation, and hold them, as we hold the rest of 
mankind, Enemies in War, in Peace Friends. 

We, therefore, the Representatives of the united 
States of America, in General Congress, Assembled, 
appealing to the Supreme Judge of the world for 



1776] TEXT 187 

the rectitude of bur intentions, do, in the Name, 
and by Authority of the good People of these Colo- 
nies, solemnly publish and declare. That these 
United Colonies are, and of Right ought to be Free 
and Independent States ; that they are Absolved 
from all Allegiance to the British Crown, and that 
all political connection between them and the State 
of G-reat Britain, is and ought to be totally dissolved; 
and that as Free and Independent States, they have 
full Power to levy War, conclude Peace, contract 
Alliances, establish Commerce, and to do all other 
Acts and Things which Independent States may of 
right do. And for the support of this Declara- 
tion, with a firm reliance on the protection of divine 
Providence, we mutually pledge to each other our 
Lives, our Fortunes and our sacred Honour. 

JOHN HANCOCK 

New Hampshire — Josiah Bartlett, Wm. The names 
Whipple, Matthew Thornton. ers^arelSre 

Massachusetts Bay — ■ Saml. Adams, John spelled as in 
Adams, Robt. Treat Paine, Elbridge G-erry. ^"^ original. 

Rhode Island — Step. Hopkins, William of the states 
Ellery. do not ap- 

ConnecticAit — Roger Sherman, Sam'el Hun- erou'pino- is 
TiNGTON, Wm.. Williams, Oliver Wolcott. the same, 

New YorJc — Wm. Floyd, Phil. Livingston, ^^^01^;? 
Frans. Lewis, Lewis Morris. thew Thorn- 

New Jersey — Richd. Stockton, Jno. Wither- Y'f;'^ ^^}^y 
spooN, Fras. Hopkinson, John Hart, Abra. Clark. verWolcott's 

Pennsylvania — Robt. Morris, Benjamin in tlie origi- 
RusH, Benja. Franklin, John Morton, Geo. ment. 
Clymer, Jas. Smith, G-eo. Taylor, James Wilson, 
Geo. Ross. 

Delaioare — C^sar Rodney, Geo. Read, Tho. 
M'Kean. 

Maryland — Samuel Chase, Wm. Paca, Thos. 
Stone, Charles Carroll of Carrollton. 

Virginia — George Wythe, Richard Henry 
Lee, Th. Jefferson, Benja. Harrison, Thos. 



188 DECLARATION OF INDEPENDENCE [Ch. XIV 

Nelson, jr., Francis Lightfoot Lee, Carter 
Braxton. 

North Carolina — Wm. Hooper, Joseph 
Hewes, John Penn. 

Sotith Carolina — Edward Rutledge, Thos. 
Heyward, Junr., Thomas Lynch, Junr., Arthur 
Middleton. 

Georgia — Button Gwinnett, Lyman Hall, 
Geo. Walton. 

CONTEMPORARY EXPOSITION 

john adams (1776) 
John Adams to Mrs. Adams 

Philadelphia July 3 [morning], 1776. 
Your favour of June 17, dated at Plymouth, was handed me 
yesterday by the post. I was much pleased to find that you 
had taken a journey to Plymouth to see your friends, in the 
long absence of one whom you may wish to see. The excursion 
will be an amusement, and will serve your health. How happy 
would it have made me to have taken this journey with you ! 

Yesterday the greatest question was decided which ever was 
debated in America; and a greater, perhaps, never was or will 
be decided among men. A resolution was passed, without one 
dissenting colony : 

" That these United Colonies are, and of right ought to be, 
free and independent states ; and, as free and independent states, 
they have, and of right ought to have, full power to make war, 
conclude peace, establish commerce, and to do all other acts 
and things which other states may rightfully do." 

You will see, in a few days, a declaration, setting forth the 
causes which have impelled us to this revolution, and the 
reasons which will justify it in the sight of God and man. 
A plan of confederation will be taken up in a few days. 

When I look back to the year 1761, and recollect the argu- 
ment concerning writs of assistance, in the superior court, 
which I have hitherto considered as the commencement of the 
controversy between Great Britain and America, and run 



1776-1821] CONTEMPORARY EXPOSITION 189 

through the whole period from that time to this, and recollect 
the series of political events, the chain of causes and effects, 
I am surprised at the suddenness as well as greatness of this 
revolution. 

Britain has been filled with folly, and America with wisdom ; 
at least this is my judgment — time must determine. It is 
the will of Heaven that the two countries should be sundered 
forever. It may be the will of Heaven that America shall 
suffer calamities still more wasting, and distresses still more 
dreadful. If this is to be the case, it will have this good effect 
at least, it will inspire us with many virtues which we have not, 
and correct many errors, follies, and vices, which threaten to 
disturb, dishonour, and destroy us. The furnace of aflSiction 
produces refinement in states as well as individuals. And the 
new governments we are assuming in every part, will require a 
purification from our vices, and an augmentation of our virtues, 
or they will be no blessings. The people will have unbounded 
power ; and the people are extremely addicted to corruption 
and venality, as well as the great. I am not without apprehen- 
sions from this quarter ; but I must submit all my hopes and 
fears to an over ruling Providence, in which, unfashionable as 
it may be, I firmly believe. 

John Adams. 

John Adams to Mrs. Adams. 

Philadelphia, July S {evening'], 1776. 

Had a Declaration of Independence been made seven months 
ago, it would have been attended with many great and glorious 
effects. We might, before this hour, have formed alliance with 
foreign states. We should have mastered Quebec, and been in 
possession of Canada. 

You will, perhaps, wonder how such a declaration would 
have influenced our affairs in Canada ; but, if I could write 
with freedom, I could easily convince you that it would, and 
explain to you the manner how. Many gentlemen in high 
stations, and of great influence, have been duped, by the minis- 
terial bubble of commissioners, to treat ; and, in real, sincere 
expectation of this event, which they so fondly wished, they 
have been slow and languid in promoting measures for the re- 



190 DECLARATION OF INDEPENDENCE [Ch. XIV 

duction of that province. Others there are in the colonies, who 
really wished that our enterprise in Canada would be defeated ; 
that the colonies might be brought into danger and distress 
between two fires, and be thus induced to submit. Others 
really wished to defeat the expedition to Canada, lest the con- 
quest of it should elevate the minds of the people too much to 
hearken to those terms of reconciliation which they believed 
would be offered us. These jarring views, wishes, and designs, 
occasioned an opposition to many salutary measures which were 
proposed for the support of that expedition, and caused ob- 
structions, embarrassments, and studied delays, which have 
finally lost iis the province. 

All these causes, however, in conjunction, would not have dis- 
appointed us, if it had not been for a misfortune which could not 
have been foreseen, and perhaps could not have been prevented 
— I mean the prevalence of the smallpox among our troops. 
This fatal pestilence completed our destruction. It is a frown 
of Providence upon us, which we ought to lay to heart. 

But, on the other hand, the delay of this declaration to this 
time has many great advantages attending it. The hopes of 
reconciliation which were fondly entertained by multitudes of 
honest and well meaning, though short-sighted and mistaken 
people, have been gradually, and at last totally, extinguished. 
Time has been given for the whole people maturely to consider 
the great question of independence, and to ripen their judgment, 
dissipate their fears, and allure their hopes, by discussing it in 
newspapers and pamphlets — by debating it in assemblies, con- 
veutions, committees of safety and inspection — in town and 
county meetings, as well as in private conversations ; so that 
the whole people, in every colony, have now adopted it as their 
own act. This will cement the union, and avoid those heats, 
and perhaps convulsions, which might have been occasioned by 
such a declaration six months ago. 

But the day is past. The second day of July, 1776, will 
be a memorable epocha in the history of America. I am apt to 
believe that it will be celebrated by succeeding generations, as 
the great Anniversary Festival. It ought to be commemorated, 
as the day of deliverance by solemn acts of devotion to God 
Almighty. It ought to..be solemnized with pomp, shews, games. 



1776-1821] CONTEMPORARY EXPOSITION 191 

sports, guns, bells, bonfires and illuminations, from one end of 
the continent to the other, from this time forward forever. 

You will think me transported with enthusiasm ; but I am not. 
I am well aware of the toil, and blood, and treasure, that it 
will cost us to maintain this declaration, and support and 
defend these states. Yet, through all the gloom, I can see the 
rays of light and glory ; I can see that the end is more than 
worth all the means, and that posterity will triumph, although 
you and I may rue, which I hope we shall not. 

John Adams. 

John Adams and Mrs. Abigail Adams, Familiar Letters during the 
Revolution. 105, 106. 

RAMS AT (1777) 

The eagerness for independence resulted more from feeling 
than reasoning. The advantages of an unfettered trade, the 
prospect of honours and emoluments in administering a new 
government, were of themselves insufficient motives for adopt- 
ing this bold measure. But what was wanting from considera- 
tions of this kind, was made up by the perseverance of Great 
Britain, in her schemes of coercion and conquest. The deter- 
mined resolution of the mother country to subdue the colonists, 
together with the plans she adopted for accomplishing that 
purpose, and their equally determined resolution to appeal to 
Heaven rather than submit, made a declaration of independence 
as necessary in 1776, as was the non-importation agreement of 
1774, or the assumption of arms in 1775. The last naturally 
resulted from the first. The revolution was not forced on the 
people by ambitious leaders grasping at supreme power, but 
every measure of it was forced on Congress, by the necessity 
of the case, and the voice of the people. The change of the 
public mind of America respecting connexion with Great- 
Britain, is without a parallel. In the short space of two years, 
nearly three millions of people passed over from the love and 
duty of loyal subjects, to the hatred and resentment of enemies. 

Ramsay, American Revolution, I. 430-432. 



192 DECLARATION OF INDEPENDENCE [Ch. XIV 

JEFFERSON (1821) 

Congress proceeded the same day to consider the Declaration 
of Independence, which had been reported and lain on the table 
the Friday preceding, and on Monday referred to a committee 
of the whole. The pusillanimous idea that we had friends in 
England worth keeping terms with, still haunted the minds of 
many. For this reason, those passages which conveyed cen- 
sures on the people of England were struck out, lest they 
should give them offence. The clause, too, reprobating the 
enslaving the inhabitants of Africa, was struck out in complai- 
sance to South Carolina and Georgia, who had never attempted 
to restrain the importation of slaves, and who, on the contrary, 
still wished to continue it. Our Northern brethren also, I 
believe, felt a little tender under those censures ; for though 
their people had very few slaves themselves, yet they had been 
pretty considerable carriers of them to others. The debates?, 
having taken up the greater parts of the 2nd, 3rd, and 4th days 
of July, were, on the evening of the last, closed ; the Declara- 
tion was reported by the committee, agreed to by the House, 
and signed by every member present, except Mr. Dickinson. 

Thomas Jeffekson, Works. I. 19. 



CRITICAL COMMENT 

WEBSTER (1826) 

The Congress of the Revolution, fellow-citizens, sat with 
closed doors, and no report of its debates was ever made. The 
discussion, therefore, which accompanied this great measure, 
has never been preserved, except in memory and by tradition. 
. . . If we contemplate it from the point where they then stood, 
no question could be more full of interest ; if we look at it now, 
and judge of its importance by its effects, it appears of still 
greater magnitude. 

Let us, then, bring before us the assembly, which was about 
to decide a question thus big with the fate of empire. Let us 
open their doors and look in upon their deliberations. Let us 
survey the anxious and care-worn countenances, let us hear the 
firm-toned voices, of this baud of patriots. 



1826-1899] CRITICAL COMMENT 193 

Hancock presides over the solemn sitting ; and one of those 
not yet prepared to pronounce for absolute independence is 
on the floor, and is urging his reasons for dissenting from the 
declaration. 

"Let us pause ! This step, once taken, cannot be retraced. 
This resolution, once passed, will cut off all hope of reconcilia- 
tion. If success attend the arms of England, we shall then be 
no longer Colonies, with charters and with privileges ; these 
will all be forfeited by this act ; and we shall be in the condition 
of other conquered people, at the mei'cy of the conquerors. 
For ourselves, we may be ready to run the hazard ; but are we 
ready to carry the country to that length? Is success so prob- 
able as to justify it? Where is the military, where the naval 
power, by which we are to resist the whole strength of the arm 
of England, for she will exert that strength to the utmost? 
Can we rely on the constancy and perseverance of the people? 
or will they not act as the people of other countries have acted, 
and, wearied with a long war, submit in the end to a worse 
oppression? While we stand on our old ground, and insist on 
redress of grievances, we know we are right, and are not 
answerable for consequences. Nothing, then, can be imputed 
to us. But if we now change our object, carrj^ our pretensions 
farther, and set up for absolute independence, we shall lose 
the sympathy of mankind. We shall no longer be defending 
what we possess, but struggling for something which we never 
did possess, and which we have solemnly and uniformly dis- 
claimed all intention of pursuing, from the very outset of the 
troubles. Abandoning thus our old grolind, of resistance only 
to arbitrary acts of oppression, the nations will believe the 
whole to have been mere pretence, and they will look on us, 
not as injured, but as ambitious subjects. 

"I shudder before this responsibility. It will be on us, if, 
relinquishing the ground on which we have stood so long, and 
stood so safely, we now proclaim independence, and carry on 
the war for that object, while these cities burn, these pleasant 
fields whiten and bleach with the bones of their owners, and 
these streams run blood. It will be upon us, it will be upon us, 
if, failing to maintain this unseasonable and ill-judged declara- 
tion, a sterner despotism, maintained by military power, shall 

13 



194 DECLARATION OF INDEPENDENCE [Ch. XIV 

be established over our posterity, when we ourselves, given up 
by an exhausted, a harassed, a misled people, shall have 
expiated our rashness and atoned for our presumption on the 
scaffold." 

It was for Mr. Adams to reply to arguments like these. We 
know his opinions, and we know his character. He would 
commence with his accustomed directness and earnestness. 

" Sink or swim, live or die, survive or perish, I give my hand 
and my heart to this vote. It is true, indeed, that in the 
beginning we aimed not at independence. But there's a 
Divinity which shapes our ends. The injustice of England has 
driven us to arms; and, blinded to her own interest for our 
good, she has obstinately persisted, till independence is now 
within our grasp. We have but to reach forth to it, and it is 
ours. Why, then, should we defer the Declaration? Is any 
man so weak as now to hope for a reconciliation with England, 
which shall leave either safety to the country and its liberties, 
or safety to his own life and his own honour? Are not you, 
Sir, who sit in that chair, is not he, our venerable colleague 
near you, are you not both already the proscribed and pre- 
destined objects of punishment and of vengeance? Cut off 
from all hope of royal clemency, what are you, what can you 
be, while the power of England remains, but outlaws ? If we 
postpone independence, do we mean to carry on, or to give up, 
the war? Do we mean to submit to the measures of Parlia- 
ment, Boston Port Bill and all? Do we mean to submit, and 
consent that we ourselves shall be ground to powder, and our 
country and its rights trodden down in the dust? I know we 
do not mean to submit. We never shall submit. Do we in- 
tend to violate that most solemn obligation ever entered into 
by men, that plighting, befoi-e God, of our sacred honour to 
Washington, when, putting him forth to incur the dangers of 
war, as well as the political hazards of the times, we promised 
to adhere to him, in every extremity, with our fortunes and our 
lives ? I know there is not a man here, who would not rather 
see a general conflagration sweep over the land, or an earth- 
quake sink it, than one jot or tittle of that plighted faith fall to 
the gi'ound. For myself, having, twelve months ago, in this 
place, moved you, that George Washington be appointed com- 



1826-1899] CRITICAL COMMENT l95 

mander of the forces raised, or to be raised, for defence of 
American liberty, may my right hand forget her cunning, and 
my tongue cleave to the roof of my mouth, if I hesitate or 
waver in the support I give him. 

"The war, then, must go on. We must fight it through. 
And if the war must go on, why put off longer the Declaration 
of Independence? That measure will strengthen us. It will 
give us character abroad. The nations will then treat with us, 
which they never can do while we acknowledge ourselves sub- 
jects, in arms against our sovereign. Nay, I maintain that 
England herself will sooner treat for peace with us on the foot- 
ing of independence, than consent, by repealing her acts, to 
acknowledge that her whole conduct towards us has been a 
course of injustice and oppression. Her pride will be less 
wounded by submitting to that course of things which now 
predestinates our independence, than by yielding the points in 
controversy to her rebellious subjects. The former she would 
regard as the result of fortune ; the latter she would feel as her 
own deep disgrace. Why, then, why, then. Sir, do we not as 
soon as possible change this from a civil to a national war? 
And since we must fight it through, why not put ourselves in a 
state to enjoy all the benefits of victory, if we gain the victory ? 

"If we fail, it can be no worse for us. But we shall not fail. 
The cause will raise up armies ; the cause will create navies. 
The people, the people, if we are true to them, will carry us, 
and will carry themselves, gloriouslj^, through this struggle. 
I care not how fickle other people have been found. I know 
the people of these Colonies, and I know that resistance to 
British aggression is deep and settled in their hearts and can- 
not be eradicated. Every Colony, indeed, has expressed its 
willingness to follow, if we but take the lead. Sir, the Decla- 
ration will inspire the people with increased courage. Instead 
of a long and bloody war for the restoration of privileges, for 
redress of grievances, for chartered immunities, held under a 
British king, set before them the glorious object of entire 
independence, and it will breathe into them anew the breath of 
life. Read this Declaration at the head of the army; every 
sword will be drawn from its scabbard, and the solemn vow 
uttered, to maintain it, or to perish on the bed of honor. Pub- 



196 DECLARATION OF INDEPENDENCE [Ch. XIV 

lish it from the pulpit; religion will approve it, and the love of 
religious liberty will cling round it, resolved to stand with it, or 
fall with it. Send it to the public halls ; proclaim it there ; let 
them hear it who heard the first roar of the enemy's cannon ; let 
them see it who saw their brothers and their sons fall on the 
field of Bunker Hill, and in the streets of Lexington and Con- 
cord, and the very walls will cry out in its support. 

" Sir, I know the uncertainty of human affairs, but I see, I 
see clearly, through this day's business. You and I, indeed, 
may rue it. We may not live to the time when this Declaration 
shall be made good. We may die ; die colonists ; die slaves ; 
die, it may be, ignominiously and on the scaffold. Be it so. 

" Be it so. If it be the pleasure of Heaven that my country 
shall require the poor offering of my life, the victim shall be 
ready, at the appointed hour of sacrifice, come when that hour 
may. But while I do live, let me have a country, or at least 
the hope of a country, and that a free country. 

"But whatever may be our fate, be assured, be assured that 
this Declaration will stand. It may cost treasure, and it may cost 
blood ; but it will stand, and it will richly compensate for both. 
Through the thick gloom of the present I see the brightness of 
the future, as the sun in heaven. We shall make this a glorious, 
an immortal day. When we are in our graves, our children will 
honour it. They will celebrate it with thanksgiving, with fes- 
tivity, with bonfires, and illuminations. On its annual return 
they will shed tears, copious, gushing tears, not of subjection 
and slavery, not of agony and distress, but of exultation, of 
gratitude, and of joy. Sir, before God, I believe the hour is 
come. My judgment approves this measure, and my whole 
heart is in it. All that I have, and all that I am, abd all that 
I hope, in this life, I am now ready here to stake upon it ; and 
I leave off as I begun, that live or die, survive or perish, I am 
for the Declaration. It is my living sentiment, and by the 
blessing of God it shall be my dying sentiment, Independence, 
now, and INDEPENDENCE FOR EVER." 

Danikl Webster, Works. I. 130-136, 



1826-18991 CRITICAL COMMENT 197 



STORY (1833) 

From the moment of the declaration of independence, if not 
for most purposes at an antecedent period, the united colonies 
must be considered as being a nation de facto, having a general 
government over it, created, and acting by the general consent 
of the people of all the colonies. The powers of that govern- 
ment were not, and indeed could not be well defined. But still 
its exclusive sovereignty, in many cases, was firmly established, 
and its controlling power over the states was in most, if not in 
all national measures, universally admitted. 

Story, Constitution of the United States. II. 89. 

LIVERMORE (1862) 

The primal American Magna Charta, by which the Founders 
of the Republic asserted the right of the people to form a con- 
stitution and government of their own, was proclaimed on the 
4th of July, 1776. Its language is clear and explicit. The 
authors were men of sense and of learning. They knew the 
meaning of the words they used. Was it for " glittering gene- 
ralities " that they pledged their lives, their fortunes, and their 
sacred honor, or did they regard the sentiments of that im- 
mortal document as solemn verities? In those times which 
tried men's souls, were they guilty of attempting to amuse the 
fancy by a rhetorical flourish, or, what is worse, to delude their 
fellow-citizens by the merest cant, or did they intend deliber- 
ately and reverently to publish to the world their Political Con- 
fession of Faith, and to endeavour to show that faith by their 

works ? 

George IjIVERMORe, An Historical Research. 19. 

J. R. GREEN (1874) 

"Washington more than any of his fellow colonists repre- 
sented the clinging of the Virginia land-owners to the mother- 
country, and his acceptance of the command of the continental 
army proved that even the most moderate among them had no 
hope now save in arms. . . . The colonies of the south, the 
last to join the struggle, had, in fact, expelled their governors in 
1775. These decisive steps were followed by the great act 



198 DECLARATION OF INDEPENDENCE [Ch. XIV 

with which American history begins, the adoption on the 4th 
of July, 1776, by the delegates in Congress of a Declaration of 
Independence. 

J. R. Green, Short History of the English People. 779, 780. 

VON HOLST (1875) 

The individual colonies, on the other hand, considered them- 
selves, up to the time of the Declaration of Independence, as 
legally dependent upon England and did not take a single step 
which could have placed them before the mother country or the 
world in the light of de facto sovereign states. They remained 
colonies until the " representatives of the United States" "in 
the name of the good people of these colonies" solemnly 
declared " these united colonies" to be " free and independent 
states." The transformation of the colonies into " states " was, 
therefore, not the result of the independent action of the 
individual colonies. It was accomplished thi'ough the " repre- 
sentatives of the United States," that is, through the revolu- 
tionary congress, in the name of the whole people. Each 
individual colony became a state only in so far as it belonged 
to the United States, and in so far as its population constituted 
a part of the people. The thirteen colonies did not, as thirteen 
separate and mutually independent commonwealths enter into a 
compact to sever the bonds which connected them with their 
common mother country, and at the same time to proclaim the 
act in a common manifesto to the world ; but the " one people " 
of the united colonies dissolved that political connection with 
the English nation, and proclaimed themselves resolved, hence- 
forth, to constitute the one perfectly independent people of the 
United States. The Declaration of Independence did not 
create thirteen sovereign states, but the representatives of the 
people declared that the former English colonies, under the 
name which they had assumed of the United States of Amer- 
ica, became, from the fourth day of July, 1776, a sovereign 
state and a member of the family of nations, recognized by 
the law of nations ; and further, that the people would support 
their representatives with their blood and treasure, in their en- 
deavour to make this declaration a universally recognized fact. 
Neither congress nor the people relied in this upon any positive 



1826-1899] CRITICAL COMMENT 199 

right belonging either to the individual colonies or to the col- 
onies as a whole. Rather did the Declaration of Independence 
and the war destroy all existing political jural relations, and 
seek their moral justification in the right of revolution inherent 
in every people in extreme emergencies. 

Dk. H. von Holst, Tke Constitutional History of the United States. I. 5-7. 
LEGKY (1SS2) 

The petition 'of Congress to the King, which was the last 
serious effort of America for pacification, was duly taken over 
to England ; but, after a short delay. Lord Dartmouth informed 
the delegates that ' no answer would be given to it.' An Act 
of Parliament was passed authorizing the confiscation of all 
American ships and cargoes, and of all vessels of other nations 
trading with the American ports ; and by a clause of especial 
atrocity, the commanders of the British ships of war were em- 
powered to seize the crews of all American vessels, and compel 
them, under pain of being treated as mutineers, to serve against 
their countrymen. 

All these things contributed to sever the colonies from am- 
icable connection with England, and to make the prospect of 
reconciliation appear strange and remote. Separation, it was 
plausibly said, was the act of the British Parliament itself, 
which had thrown the thirteen colonies out of the protection 
of the Crown. But another and more practical consideration 
concurred with the foregoing in producing the Declaration of 
Independence. One of the gravest of the questions which were 
agitating the Revolutionary party was the expediency of asking 
for foreign, and especially for French assistance. France had 
hitherto been regarded in America, even more than in England, 
as a natural enemy. She was a despotic Power, and could not 
therefore, have much real sympathy with a struggle for con- 
stitutional liberty. Her expulsion from America had been for 
generations one of the first objects of American patriots ; and 
if she again mixed in American affairs, it was natural that she 
should seek to regain the province she had so lately lost. If 
America was destined to be an independent Republic, nothing 
could be more dangerous than to have a military and aggressive 
colony belonging to the most powerful despotism in Europe 



200 DECLARATION OF INDEPENDENCE [Ch. XIV 

planted on her frontiers. . . . The questions of a French 
alliance and of a declaration of independence were thus indis- 
solubly connected. In the autumn of 1775 a motion was made 
in Cono-ress, and strongly supported by John Adams, to send 
ambassadors to France. But Congress still shrank from so 
formidable a step, though it agreed, after long debates and 
hesitation, to form a secret committee ' to correspond with 
friends in Great Britain, Ireland, and other parts of the 
world.' 

... It belongs rather to the historian of America than to 
the historian of England to recount in detail the various steps 
that led immediately to the Declaration of Independence. . . . 
John Adams was now the most powerful advocate, while John 
Dickenson was the chief opponent of independence. At last, 
however, it was resolved not to show any appearance of dis- 
sension to the world. . . . Thomas Jefferson, of Virginia, 
whose literary power had been shown in many able State 
papers, had already drawn up the Declaration of Indepen- 
dence, which, having been revised by Franklin and by John 
Adams, was now submitted to the examination of Congress, 
and was voted after some slight changes on the evening of the 
4th. It proclaimed that a new nation had arisen in the world, 
and that the political unity of the English race was for ever at 
an end. 

W. E. H. Lecky, England in the Eighteenth Century. III. 491-499. 

ELLIS (1887) 

Recalling the fact that in all previous remonstrances and 
petitions, without a single exception, whether coming from a 
convention, an assembly, or a congress, the ministry and Par- 
liament were made to bear the burden of all complaints and 
reproaches, we note with emphasis that in the Declaration of 
Independence, for the first time, " the present king of Great 
Britain " is charged the offender. Its scathing invectives in 
its short sentences begin with " He." His tools and supporters 
are all lost sight of, passed unmentioned. This substitution of 
the monarch himself as chargeable, through his own persistency, 
with the whole burden heretofore laid at the door of his advisers 
indicates the necessity which Congress felt of seeming to sever 



1826-1899] CRITICAL COMMENT 201 

their plain constitutional allegiance to the monarch, and of 
ignoring all dependence on his ministers or Parliament, whose 
supremacy over the colonies they had always denied. Hence 
the tone and wording of all the previous utterances of Congress, 
deferential and even fulsome as they now seem, in sparing the 
king, for the first time, in the Declaration, are changed to give 
the necessary legal emphasis of the capital letters in He. . . . 

On the other side of the water, the Declaration, as " throw- 
ing off the mask of hypocrisy " by the patriots, was a very 
painful shock to many who had been most friendly and earnest 
champions of the cause of the colonists. The members of the 
opposition in Parliament and in high places were taunted by 
the supporters of Government for all their pleading in behalf 
of rebels. And when, besides the bold avowal of independence, 
the added measures of a suspension of all commerce with Great 
Britain, and an alliance of the patriots with the hereditary 
enemy of their mother country, came to the knowledge of those 
who had been our friends, the constei'nation which it caused 
them was but natural. . . . What is there to be said, either by 
way of explanation or of justification, of the course ascribed to 
the patriots? It is well to admit freely that there was much 
said, if not done, that had the seeming of duplicity and insin- 
cerity, of secrecy of design and of sinuous dealing. And after 
yielding all that can be charged of this, we may insist that, in 
reality, it was nothing beyond the seeming. Neither disguise, 
nor duplicity, nor hypocrisy, nor artful or cunning intrigue, 
in any shape or degree, was availed of by the patriots. The 
result to which they were led was from the first natural and 
inevitable, and it was reached by bold and honest stages, in 
thinking out and making sure of their way. The facts are all 
clearly revealed to us in their course of development. The 
maturing of opinion, till what had been repelled as a calamity 
was accepted as a necessity, is traceable through the changing 
events of a few heavily burdened years, if not even of months 
and days, to say nothing of the symptoms of it which a keen 
perception may discover during the career of four generations of 
Englishmen on this continent. Its own natural stages of growth 
were reached just at the time that it was attempted to bring it 
under check by artificial restraint of the home government. 



202 DECLARATION OF INDEPENDENCE [Ch. XIV 

That government compelled the colonists to ask themselves the 
two questions : first, if they were anything less than English- 
men ; and further, if their natural rights were any less than 
those of men. 

Geokge E. Ellis, in Winsor, Narrative and Critical History of America. 
VI. 247. 

FISKE (1896) 

No one who is familiar with the essential features of Amer- 
ican political life can for a moment suppose that the Declara- 
tion of Independence was brought about by any less weighty 
force than the settled conviction of the people that the priceless 
treasure of self-government could be preserved by no other 
means. It was but slowly that this unwelcome conviction grew 
upon the people ; and owing to local differences of circumstances 
it grew more slowly in some places than in others. Prescient 
leaders, too, like the Adamses and Franklin and Lee, made 
up their minds sooner than other people. Even those con- 
servatives who resisted to the last, even such men as John 
Dickinson and Robert Morris, were fully agreed with their op- 
ponents as to the principle at issue between Great Britain and 
America, and nothing would have satisfied them short of the 
total abandonment by Great Britain of her pretensions to im- 
pose taxes and revoke charters. Upon this fundamental point 
there was very little difference of opinion in America. As to 
the related question of independence, the decision, when once 
reached, was everywhere alike the reasonable result of free and 
open discussion ; and the best possible illustration of this is the 
fact that not even in the darkest days of the war already begun 
did any state deliberately propose to reconsider its action in 
the matter. 

John Fiskb, American Revolution. I. 196. 

LODGE (1899) 

The Declaration when published was read to the army under 
Washington and received by the soldiers with content. It was 
a satisfaction to them to have the reality for which they were 
fighting put into words and officially declared. It was read 
also formally and with some ceremony in public places, in all 



1826-1899] CRITICAL COMMENT 203 

the chief towns of the colonies, and was received by the people 
cordially and heartily, but without excitement. There was no 
reason why it should have called forth much feeling, for it 
mei'ely embodied public opinion already made up, and was ex- 
pected by the loyalist minority. Yet despite its general accept- 
ance, which showed its political strength, it was a great and 
memorable document. From that day to this it has been 
listened to with reverence by a people who have grown to be a 
great nation, and equally from that day to this it has been the 
subject of severe criticism. The reverence is right, the criti- 
cism misplaced and founded on misunderstanding. 

Henky Cabot Lodge, American Revolution. I. 499. 



204 THE ARTICLES OF CONFEDERATION [Ch. XV 



Chapter XV 
THE ARTICLES OF CONFEDERATION 

SUGGESTIONS 

From July 4th, 1776, the United States of America were governed 
by a Continental or General Congress until March 1, 1781, when the 
States adopted a constitution, called the '•'■ Articles of Confederation 
and Perpetual Union between the States." The " Articles " had been 
made by the States only : Congress continued to govern or pretended 
to govern by these " Articles " until March 4th, 1789 : but in the 
meanwhile the constitution had no given power to execute the laws or 
to pass judgment upon the acts of the government. The document 
is supposed to have been drafted by John Dickinson of Delaware, but 
as the work of the committee was done in secret and has never been 
reported the point cannot be determined. 

The inadequacy of this frame of government proved to be most 
unsatisfactory. Five years of construction, six years of struggling 
existence, mark the life of the Articles, but they died only to give 
birth to a greatly improved constitutional document. 

For Outlines and Material, see Appendix A. 

DOCUMENT 

Articles of Confederation (1776-1778) 

Nov. 15, 1777. —ARTICLES AGREED TO BY 
CONGRESS 

American A copy of the Confederation being made out 

History g^^jj sundry amendments made in the diction with- 

Leaflets JNo. . '' 

20 (verified out altering the sense the same was agreed to & is 

from original as follows : 

manu- 

July 9, 1778. — ARTICLES OF CONFEDERA- 
JuF/stb! TION. (OFFICIAL ENGROSSED TEXT) 

RaUfied' S:0ElIt0TO!)0m 

March 1st these Presents shall come, we the undersigned Dele- 
1781 

gates of the States affixed to our Names send 



1776-1778] TEXT 205 

greeting. Whereas the Delegates of the United 
States of America in Congress assembled did on 
the fifteenth day of November in the Year of Our 
Lord One thousand seven Hundred and Seventy- 
seven, and in the second Year of the Independence 
of America agree to certain articles of Confedera- 
tion and perpetual Union between the States of 
Newhampshire, Massachusetts-bay, Ehodeisland 
and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Mary- 
land, Virginia, North-Carolina, South-Carolina, and 
Georgia in the Words following, viz. " Akticles 
OF CoKFEDERATiON and perpetual Union between 
the States of Newhampshire, Massachusetts-bay, 
Ehodeisland and Providence Plantations, Con- 
necticut, New- York, New-Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North-Carolina, 
South-Carolina, and Georgia." 

Article I. The Stile of this confederacy shall 
be "The United States of America." 

Article II. Each state retains its sovereignty, Idea of 
freedom and independence, and every Power, Juris- statehood 
diction and right, which is not by this confederation foremost, 
expressly delegated to the United States, in Con- 
gress assembled. 

Article III. The said states hereby severally See Constitu- 
enter into a firm league of friendship with each *1°^' , , 
other, for their common defence, the security of 
their Liberties, and their mutual and general wel- 
fare, binding themselves to assist each other, 
against all force offered to, or attacks made upon 
them, or any of them, on account of religion, sov- 
ereignty, trade, or any other iDretence whatever. 

Article IV. The better to secure and perpetuate Notwith- 

mutual friendship and intercourse among the people standing this 
'- . . clause, vari- 

of the different states m this union, the free m- ous states 

habitants of each of these states, paupers, vaga- disagreed 

bonds, and fugitives from Justice excepted, shall ^^^ iSTaviga- 

be entitled to all privileges and immunities of free tion Laws. 



206 THE ARTICLES OF CONFEDERATION [Ch. XV 

citizens in the several states ; and the people of 
each state shall have free ingress and regress to 
and from any other state, and shall enjoy therein 
SeeConstitu- all the privileges of trade and commerce, subject 
10*^?^'^^'^" ^ ^^ ^^^ same duties, impositions and restrictions as 
the inhabitants thereof respectively, provided that 
such restriction shall not extend so far as to pre- 
vent the removal of property imported into any 
state, to any other state of which the Owner is 
an inhabitant ; provided also that no imposition, 
duties or restriction shall be laid by any state, 
on the property of the united states, or either of 
them. 
Constitution, If any Person be guilty of, or charged with 
Art. iv. 2. (2) treason, felony, or other high misdemeanour in any 
state, shall flee from Justice, and be found in any 
of the united states, he shall upon demand of the 
Governor or executive power, of the state from 
which he fled, be delivered up and removed to the 
state having jurisdiction of his offence. 
Constitution, FuLL faith and credit shall be given in each of 
Art. iv. 1 these states to the records, acts and judicial pro- 
ceedings of the courts and magistrates of every 
other state. 

Since there Article V. For the more convenient manage- 
was no sepa- „ , , . ^ , . ^ ^ 

rate execu- nient of the general mterest of the united states, 

tive or judi- delegates shall be annually appointed in such man- 

gress'became ^®^ ^^ ^^® legislature of each state shall direct, to 

the sole re- meet in Congress on the first Monday in November, 

natiorS*^ in ever}^ year, with a power reserved to each state, 

power. to recal its delegates, or any of them, at any time 

See Con- within the year, and to send others in their stead, 

Art. i. 1-7 foi' the remainder of the Year. 

No state shall be represented in Congress by 

Constitution jggg than two, nor by more than seven Members : 

Art i. 2 T J ' 

(1 2 3) ^^^ ^o person shall be capable of being a delegate 

for more than three years in any term of six years ; 

nor shall any person, being a delegate, be capable 

of holding any office under the united states, for 



1776-1778] TEXT 207 

which he, or another for his benefit, receives any 
salary, fees or emolument of any kind. 

Each state shall maintain its own delegates in a 
meeting of the states, and while they act as mem- 
bers of the committee of the states. 

In determining questions in the united states, in 
Congress assembled, each state shall have one vote. 

Freedom of speech and debate in congress shall Constitution, 
not be impeached or questioned in any Court, or ^^t- i- ^ 0) 
place out of Congress, and the members of Con- 
gress shall be protected in their persons from ar- 
rests and imprisonments, during the time of their 
going to and from, and attendance on congress, 
except for treason, felony, or breach of the peace. 

Article VI. No state without the Consent of Constitution, 
the united states in congress assembled, shall send -^^^' ^- ^^• 
any embassy to, or receive any embassy from, or 
enter into any conference, agreement, alliance or 
treaty with any King, prince, or state; nor shall 
any person holding any office of profit or trust 
under the united states, or any of them, accept of 
any present, emolument, office or title of any kind 
whatever from any king, prince, or foreign state ; 
nor shall the united states in congress assembled, 
or any of them, grant any title of nobility. 

No two or more states shall enter into any treaty, iSTotwith- 
confederation or alliance whatever between them, standing this 
without the consent of the united states in congress compact was 
assembled, specifying accurately the purpose for made be- 
which the same is to be entered into and how long i^^j and^^^" 
it shall continue. Virginia. 

No state shall lay any imposts or duties, which This crippled 
mav interfere with any stipulations in treaties, en- the treaty- 
tered into by the united states in congress assem- power." 
bled, with any king, prince, or state, in pursuance 
of any treaties already proposed by congress, to 
the courts of France and Spain. 

No vessels of war shall be kept up in time of 
peace by any state, except such number only, as 



208 THE ARTICLES OF CONFEDERATION [Ch. XV 

Constitution, shall be deemed necessary by the united states in 
Art. I. 10 congress assembled, for the defence of such state, 
or its trade ; nor shall any body of forces be kept 
up by any state, in time of peace, except such 
number only, as in the judgment of the united 
states, in congress assembled, shall be deemed 
requisite to garrison the forts necessary for the 
defence of such state ; but every state shall always 
keep up a well regulated and disciplined militia, 
sufficiently armed and accoutred, and shall provide 
and constantly have ready for use, in public stores, 
a due number of field pieces and tents, and a proper 
quantity of arms, ammunition and camp equipage. 

No state shall engage in any war without the 
consent of the united states in congress assembled, 
Notwith- unless such state be actually invaded by enemies, 
clause^eor-^ ^^ shall have received certain advice of a resolution 
gia made war being formed by some nation of Indians to invade 
^^th*r^^*^ such state, and the danger is so imminent as not 
Indians. to admit of a delay, till the united states in con- 

gress assembled can be consulted : nor shall any 
state grant commissions to any ships or vessels of 
war, nor letters of marque or reprisal, except it be 
after a declaration of war by the united states in 
congress assembled, and then only against the 
kingdom or state and the subjects thereof, against 
which war has been so declared, and under such reg- 
ulations as shall be established by the united states 
in congress assembled, unless such state be infested 
by pirates, in which case vessels of war may be 
fitted out for that occasion, and kept so long as 
the danger shall continue, or until the united states 
in congress assembled shall determine otherwise. 

Article VII. When land-forces are raised by 
any state for the common defence, all officers of 
or under the rank of colonel, shall be appointed 
by the legislature of each state respectively by 
whom such forces shall be raised, or in such man- 
ner as such state shall direct, and all vacancies 



1776-1778] TEXT ■ 209 

shall be filled up by the state which first made the 

appointment. 

Article VIII. All charges of war, and all other The system 

expences that shall be incurred for the common ^f requisi- 
^ 1. II,- T 11 1 1 1 tions on the 

defence or general welfare, and allowed by the states proved 

united states in congress assembled, shall be de- totally inade- 

frayed out of a common treasury, which shall be jg^j i^ con- 

supplied by the several states, in proportion to the stant fric- 

value of all land within each state, granted to or ^^are taxation 

surveyed for any Person, as such land and the clause here 

buildings and improvements thereon shall be esti- 'J^\*^ Consti- 
T -,. , , , . -, tution, Art. 

mated accordmg to such mode as the united states j. g (1) 

in congress assembled, shall, from time to time, 
direct and appoint. The taxes for paying that 
proportion shall be laid and levied by the authority 
and direction of the legislatures of the several states 
within the time agreed upon by the united states in 
congress assembled. 

Article IX. The united states in congress as- increase of 

sembled, shall have the sole and exclusive right and power in _ 

~ . . . . -, . . Congress m 

power of determmmg on peace and war, except in Constitution 

the cases mentioned in the sixth article — of sending Art. i. 8 (11- 

18) 
and receiving ambassadors — entering into treaties '' 

and alliances, provided that no treaty of commerce 
shall be made whereby the legislative power of the 
respective states shall be restrained from imposing 
such imposts and duties on foreigners, as their own 
people are subjected to, or from prohibiting the 
exportation or importation of any species of goods 
or commodities whatsoever — of establishing rules 
for deciding in all cases, what captures on laud or 
water shall be legal, and in what manner prizes 
taken by land or naval forces in the service of the 
united states shall be divided or appropriated — of 
granting letters of marque and reprisal in times of 
peace — appointing courts for the trial of piracies 
and felonies committed on the high seas and estab- 
lishing courts for receiving and determining finally 
appeals in all cases of captures, provided that no 

14 



210 THE ARTICLES OF CONFEDERATION [Ch. XV 

member of congress shall be appointed a judge of 
any of the said courts. 
Constitution The united states in congress assembled shall 
Art. iii. c^^qo be the last resort on appeal in all disputes and 

differences now subsisting or that hereafter may 
Tliis was a arise between two or more states concerning bound- 
clumsy ary, jurisdiction or any other cause whatever ; which 
was u*se(f but authority shall always be exercised in the manner 
once. following. "Whenever the legislative or executive 
authority or lawful agent of any state in controversy 
with another shall present a petition to congress, 
stating the matter in question and praying for a 
hearing, notice thereof shall be given by order of 
congress to the legislative or executive authority of 
the other state in controversy, and a day assigned 
for the appearance of the parties by their lawful 
agents, who shall then be directed to appoint by 
joint consent, commissioners or judges to constitute 
a court for hearing and determining the matter in 
question: but if they cannot agree, cougz-ess shall 
name three persons out of each of the united states, 
and from the list of such persons each party shall 
alternately strike out one, the petitioners beginning, 
until the number shall be reduced to thirteen ; and 
from that number not less than seven, nor more 
than nine names as congress shall direct, shall in 
the presence of congress be drawn out by lot, and 
the persons whose names shall be so drawn or any 
five of them, shall be commissioners or judges, to 
hear and finally determine the controversy, so always 
as a major part of the judges who shall hear the 
cause shall agree in the determination : and if either 
party shall neglect to attend at the day appointed, 
without shewing reasons, which congress shall judge 
sufficient, or being present shall refuse to strike, the 
congress shall proceed to nominate three persons out 
of each state, and the secretary of congress shall 
strike in behalf of such party absent or refusing ; 
and the judgment and sentence of the court to be 



1776-1778] TEXT 211 

appointed, in the manner before prescribed, shall 
be final and conclusive ; and if any of the parties 
shall refuse to submit to the authority of such court, 
or to appear or defend their claim or cause, the 
court shall nevertheless proceed to pronounce sen- 
tence, or judgment, which shall in like manner be 
final and decisive, the judgment or sentence and 
other proceedings being in either case transmitted 
to congress, and lodged among the acts of congress 
for the security of the parties concerned : provided 
that every commissioner, before he sits in judgment, 
shall take an oath to be administered by one of the 
judges of the supreme or superior court of the state, 
whei-e the cause shall be tried, ' ' well and truly to 
hear and determine the matter in question, accord- 
ing to the best of his judgment, without favour, 
affection or hope of reward : " provided also that no 
state shall be deprived of territory for the benefit 
of the united states. 

All controversies concerning the private right of Wyoming 
soil claimed under different grants of two or more ^Q^^^fg 
states, whose jurisdictions as they may respect such 
lands, and the states which passed such grants are 
adjusted, the said grants or either of them being at 
the same time claimed to have originated antecedent 
to such settlement of jurisdiction, shall on the peti- 
tion of either party to the congress of the united 
states, be finally determined as near asmaybe in the 
same manner as is before prescribed for deciding 
disputes respecting territorial jurisdiction between 
different states. 

The united states in congress assembled shall Paper money 
also have the sole and exclusive right and power of ~ Tender 
regulating the alloy and value of coin struck by Acts,'shays's 
their own authority, or by that of the respective Rebellion, 
states — fixing the standard of weights and meas- 
ures throughout the United States — regulating the 
trade and manageing all affairs with the Indians, not 
members of any of the states, provided that the 



212 THE ARTICLES OF CONFEDERATION [Ch. XV 

legislative right of any state within its own limits 
be not infringed or violated — establishing and 
regulating post-offices from one state to another, 
throughout all the united states, and exacting such 
postage on the papers passing thro' the same as 
may be requisite to defray the expences of the said 
office — appointing all officers of the land forces, in 
the service of the united states, excepting regimen- 
tal officers — appointing all the officers of the naval 
forces, and commissioning all officers whatever in 
the service of the united states — making rules for 
the government and regulation of the said land and 
naval forces, and directing their operations. 
This Com- The united states in congress assembled shall 

mittee of the j-j^^g authority to appoint a committee, to sit in the 

OtRteS W3iS ci ^ ^ -\ ' ~t k /-A 

failure. recess of congress, to be denommated " A Committee 

of the States," and to consist of one delegate from 
each state ; and to appoint such other committees 
and civil officers as may be necessary for manage- 
ing the general affairs of the united states under 
their direction — to appoint one of their number to 
preside, provided that no person be allowed to serve 
in the office of president more than one year in any 
term of three years ; to ascertain the necessary 
sums of Money to be raised for the service of the 
united states, and to appropriate and apply the 
same for defraying the public expences — to borrow 
money, or emit bills on the credit of the united 
states, transmitting every half year to the respec- 
tive states an account of the sums of money so bor- 
rowed or emitted, — to build and equip a navy — ■ 
to agree iipon the number of land forces, and to 
make requisitions from each state for its quota, in 
proportion to the number of white inhabitants in 
such state ; which requisition shall be binding, and 
thereupon the legislature of each state shall appoint 
the regimental officers, raise the men and cloath, 
arm and equip them in a soldier like manner, at the 



1776-1778] TEXT 213 

expence of the united states ; and the officers and 

men so cloathed, armed and equipped shall march 

to the place appointed, and within the time agreed 

on by the united states in congress assembled : But Seditious 

if the united states in congress assembled shall, on outbreaks 

. , . ^ . T follow 

consideration of circumstances judge proper that (Rhode 

any state should not raise men, or should raise a Island in 
smaller number than its quota, and that any other 
state should raise a greater number of men than the 
quota thereof, such extra number shall be raised, 
officered, cloathed, armed and equipped in the same 
manner as the quota of such state, unless the legis- 
lature of such state shall judge that such extra 
number cannot be safely spared out of the same, 
in which case they shall raise officer, cloath, arm 
and equip as many of such extra number as they 
judge can be safely spared. And the officers and 
men so cloathed, armed and equipped, shall march 
to the place appointed, and within the time agreed 
on by the united states in congress assembled. 

The united states in congress assembled shall The nine 

never engage in a war, nor grant letters of marque ^tates rule 

, ° ° . , . ' '' ... (practically 

and reprisal in time of peace, nor enter into any requirino- a 

treaties or alliances, nor coin money, nor regulate two-thirds 

the value thereof, nor ascertain the sums and ex- ^jjg states) 

pences necessary for the defence and welfare of the was a serious 

united states, or any of them, nor emit bills, nor n°e^ied 

borrow money on the credit of the united states, legislation. 

nor appropriate money, nor agree upon the number 

of vessels of war, to be built or purchased, or the 

number of land or sea forces to be raised, nor 

appoint a commander-in-chief of the army or navy, 

unless nine states assent to the same : nor shall a 

question on any other point, except for adjourning 

from day to day be determined, unless by the 

votes of a majority of the united states in congress 

assembled. 

The congress of the united states shall have 



214 THE ARTICLES OF CONFEDERATION [Ch. XV 

power to adjourn to any time within the year, 
and to any place within the united states, so that 
no period of adjournment be for a longer duration 
than the space of six months, and shall publish the 
Journal of their proceedings monthly, except such 
parts thereof relating to treaties, alliances or mili- 
tary operations, as in their judgment require se- 
crecy ; and the yeas and nays of the delegates of 
each state on any question shall be entered on the 
Journal, when it is desired by any delegate ; and 
the delegates of a state, or any of them, at his or 
their request shall be furnished with a transcript of 
the said Journal, except such parts as are above 
excepted, to lay before the legislatures of the 
several states. 

Article X. The committee of the states, or 
any nine of them, shall be authorized to execute, in 
the recess of congress, such of the powers of con- 
gress as the united states in congress assembled, by 
the consent of nine states, shall from time to time 
think expedient to vest them with ; provided that 
no power be delegated to the said committee, for 
the exercise of which, by the articles of confedera- 
tion, the voice of nine states in the congress of the 
united states assembled is requisite. 

Article XI. Canada acceding to this confeder- 
ation, and joining in the measures of the united 
states, shall be admitted into, and entitled to all 
the advantages of this union : but no other colony 
shall be admitted into the same, unless such ad- 
mission be agreed to by nine states. 

As the Unit- Article XII. All bills of credit emitted, monies 

ed States borrowed and debts contracted by, or under the 

tiad no inde- '' 

pendent tax- authority of congress, before the assembling of the 

ing powers, united states, in pursuance of the present confedera- 
was of very tion, shall be deemed and considered as a charge 



1776-1778] TEXT 215 

against the united states, for payment and satisfac- little ac- 
tion whereof the said united states, and the public 
faith are hereby solemnly pledged. 

Article XIII. Every state shall abide by the This clause 

determinations of the united states in congress ^^ntlv^' 

assembled, on all questions which by this confedera- broken for 

tion are submitted to them. And the Articles of l^ck of judi- 
cial de]3art- 
this confederation shall be inviolably observed by ment to en- 

every state, and the union shall be perpetual ; nor force it. 

shall any alteration at any time hereafter be made 

in any of them ; unless such alteration be agreed to 

in a congress of the united states, and be afterwards 

confirmed by the legislatures of every state. 

'^Inti IJlEf)Erea0 it hath pleased the Great Gover- 
nor of the World to incline the hearts of the legis- 
latures we respectively represent in congress, to 
approve of, and to authorize us to ratify the said 
articles of confederation and perpetual union, knoto 
ge that we the undersigned delegates, by virtue of 
the power and authority to us given for that pur- 
pose, do by these presents, in the name and in 
behalf of our respective constituents, fully and 
entirely ratify and confirm each and every of the 
said articles of confederation and perpetual union, 
and all and singular the matters and things therein 
contained : And we do further solemnly plight and 
engage the faith of our respective constituents, that 
they shall abide by the determinations of the united 
states in congress assembled, on all questions, 
which by the said confederation are submitted to 
them. And that the articles thereof shall be in- 
violably observed by the states we respectively 
represent, and that the union shall be perpetual. 
In witness whereof we have hereunto set our hands 
in Congress. Done at Philadelphia in the state of 
Pennsylvania the ninth Day of July in the Year of 
our Lord one Thousand seven Hundred and Seventy 



216 



THE ARTICLES OF CONFEDERATION [Ch. XV 



eight, and in the third year of the independence of 
America. 



On the part & 
behalf of the 
State of Dela- 
ware 

on the part and 
behalf of the 
State of Mary- 
land 

On the Part and 
Behalf of the 
State of Vir- 
ghiia 

on the part and 
Behalf of the 
State of No. 
Carolina 



On the paxt and 
behalf of the 
State of South- 
Carolina 



On the part and 
behalf of the 
State of Geor- 
gia 



Thos M: Kean 

Feb 12. 1779 
John Dickinson, 

May 5th 1779 
Nicholas Van 

Dyke, 
John Hanson 

Ma,rch 1st 1781 
Daniel Carroll. 

do. 
Richard Henry 

Lee 
John Bannister 
Thomas Adams 
Jno Harvle 
Francis Light- 
foot Lee 
John Penn July 

21st 1778 

Corns Harnett 

Jno. Williams 

' Henry Laurens. 

William Henry 

Drayton 
Jno. Mathews 
Richd Hudson 
Thos. Heyward 

Junr. 
Jno Walton 24th 

July 1778 
Edwd. Telfair. 
E d w d. L a n g- 

worthy. 



Josiah Bartlett, 
John Wentworth 

Junr august 

8th 1778 
John Hancock. 
Samuel Adams 
Elbridge Gerry. 
Frances Dana 
James Lovell 
Samuel Holten. 

William EUery 
Henry Marchant 
John Collins 



Roger Sherman, 
Samuel Huntmg- 

ton 
Oliver Wolcott 
Titus Hosmer 
Andrew Stearns 
Jas. Duane. 
Fras. Lewis 
Wm Duer. 
Gouv. Morris, 



Jno Witherspoon 
Nath. Scudder 



Robt Morris. 
Daniel Rober- 

deau 
Jon. Bayard 

Smith 
William Clingan 
Joseph Reed. 

22d July 1778 



on the part & 
behalf of the 
State of New 
Hampshire 

on the part and 
behalf of the 
State of Massa- 
chusetts Bay 

On the part and 
behalf of the 
State of Rhode- 
Island and 
Providence 
Plantations 

on the Part and 
behalf of the 
State of Con- 
necticut 

On the Part and 
Behalf of the 
State of New 
York 

On the Part and 
in Behalf of 
the State of 
New Jersey. 
Novr. 26. 1778 



On the part and 
behalf of the 
State of Penn- 
sylvania 



CONTEMPORARY EXPOSITION 

PELATIAH WEBSTER (1784) 

The articles of our federal union were drawn up by Con- 
gress, and adopted by the states, amidst the confusions of a 
most bloody, cruel, and unnatural war, when the attention of 
Congress who drew, and the states who adopted them, was 
frequently drawn off by continual alarms, burning of towns, 
slaughter, and bloodshed. No marvel then that every incon- 
viency attending them when reduced into practice, could not be 
foreseen, either by those who drew, or those who adopted 
them ; at which period, it would not have been well accepted, 
had any one discovered, and had ventured to call into ques- 



1778-1784] CONTEMPORARY EXPOSITION 217 

tion, the propriety of any one of the thirteen articles of our 
confederation. 

It may therefore be advisable, now that we are released of 
the distressing scenes of war, deliberately to examine, revise, 
correct and amend them, in every instance, in which when 
reduced into practice, they may be found — inconsistent with 
each other — not capable of being carried into execution — or 
inconsistent with the general sense and understanding of those 
who adopted them. . . . 

The true end and design of our confederation I take to be this, 
viz. To unite the strength of the separate states under Con- 
gress as their general Head, and to delegate to them the 
direction of the operations of our military and naval forces 
against the power of Great Britain. . . . And this I take it 
was the general sense and understanding of the states who 
adopted the articles of our federal union, and the whole tenor 
of the articles themselves support this opinion. . . . Congress 
are to determine the number of troops necessary for the ser- 
vice of the states, . . . What service? The service of the war 
and general defence . . . and for that end they were to make 
requisition to each state for their quota, " and to ascertain the 
necessary sums of money to be raised for the service " of the 
war, and to appropriate and apply the same ; that matter not 
being compatible to any particular state, by constitution is 
vested in congress, whose right it properly is, and is expressly 
delegated to them. . . . 

The form of government planned by Congress, and adopted 
by the states, is the only form we could adopt under our 
circumstances: And the honor and dignity of Congress, as a 
private citizen, I am determined to support, as much as the 
sovereignty, freedom, and independence of the states, and 
every power, jurisdiction and right, which they have not ex- 
pressly delegated to Congress. But as every deviation from 
the articles of our federal union makes a dangerous precedent 
in future, the defects in the articles of confederation can be 
known only by practice : And it is time enough to make 
alterations in our system of government, when the defects are 
made evident. 

Pelatiah Wkbster, Remarks On a Pamphlet. 11, 24, 39. 



218 THE ARTICLES OF CONFEDERATION [Ch. XV 

"WASHINGTON (1786-1787) 

To Henry Lee, in Congress. 

Mt. Vernon, 31 October, 1786. 

My Dear Sir, . . . Influence is no government. Let us have 
one by which our lives, liberties, and properties will be secured, 
or let us know the worst at once. Under these impressions, 
my humble opinion is, that there is a call for decision. . . . 
Let the reins of government then be braced and held with a 
steady hand, and every violation of the constitution be repre- 
hended. If defective, let it be amended, but not suffered to be 
trampled upon whilst it has an existence. . . . 

To John Gay. 10 March 1787. 

Dear Sir, . . . How far the revision of the federal system, 
and giving more adequate powers to congress may be productive 
of an efficient government, I will not under my present view 
of the nature, presume to decide. . . . Among men of reflec- 
tion, few will be found I believe, who are not beginning to 
think that our system is more perfect in theory than in prac- 
tice ; and that notwithstanding the boasted virtue of America 
it is more probable we shall exhibit the best melancholy proof, 
that mankind are competent to their own government without 
the means of coercion in the sovereign. . . . 

To James Madison, in Congress. 

31 March, 1787. 

My Dear Sir, . . . That a thorough reform of the present 
system is indispensable, none, who have capacities to judge, 
will deny ; and with hand [and heart] I hope the business will 
be essayed in a full convention. After which, if more powers 
and more decision is not found in the existing form, if it still 
wants energy and that secrecy and despatch . . . which is char- 
acteristic of good government, and if it shall be found, . . . 
that Congress will, upon all proper occasions, exert the powers 
which are given, with a firm and steady hand, instead of fritter- 
ing them back to the States, where the members, in place of 
viewing themselves in their national character, are too apt to 
be looking, — I say, after this essay is made, if the system 



1786-1821] CONTEMPORARY EXPOSITION 219 

proves inefficient, conviction of the necessity of a change will 
be disseminated among all classes of the people. Then, and 
not till then, in my opinion, can it be attempted without 
involving all the evils of civil discord. . . . 

Geokge Washington, Works. II. 76-133. 

HAMILTON (1780) 

But the Confederation itself is defective, and requires to be 
altered. It is neither fit for war nor peace. The idea of an 
uncontrollable sovereignty in each State over its internal police 
will defeat the other powers given to Congress, and make our 
union feeble and precarious. There are instances without num- 
ber where acts, necessary for the general good, and which rise 
out of the powers given to Congress, must interfere with the 
internal police of the States ; and there are as many instances 
in which the particular States by arrangements of internal 
police, can effectually, though indirectly, counteract the ar- 
rangements of Congress. You have already had examples of 
this, for which I refer you to your own memory. 

The Confederation gives the States, individually, too much 
influence in the affairs of the army. They should have nothing 
to do with it. The entire formation and disposal of our mili- 
tary forces ought to belong to Congress. It is an essential 
cement of the union ; and it ought to be the policy of Congress 
to destroy all ideas of State attachments in the army, and make 
it look up wholly to them. For this purpose all appointments, 
promotions, and provisions, whatsoever, ought to be made by 
them. It may be apprehended that this may be dangerous to 
liberty. But nothing appears more evident to me than that we 
run much greater risk of having a weak and disunited federal 
government, than one which will be able to usurp upon the 
rights of the people. 

Alexander Hamilton, Works. I. 205. 

JEFFERSON (1821) 

Our first essay, in America, to establish a federative govern- 
ment had fallen, on trial, very short of its object. During the 
war of Independence, while the pressure of an external enemy 
hooped us together, and their enterprises kept us necessarily 



220 THE ARTICLES OF CONFEDERATION [Ch. XV 

on the alert, the spirit of the people, excited by danger, was a 
supplement to the Confederation, and urged them to zealous 
exertions, whether claimed by that instrument or not ; but, 
when peace and safety were restored, and every man became 
engaged in useful and profitable occupation, less attention was 
paid to the calls of Congress. The fundamental defect of the 
Confederation was, that Congress was not authorized to act 
immediately on the people, and by its own officers. Their 
power was only requisitory, and these requisitions were ad- 
dressed to the several Legislatures, to be by them carried into 
execution, without other coercion than the moral principle of 
duty. This allowed, in fact, a negative to every Legislature, 
on every measure pi'oposed by Congress; a negative so fre- 
quently exercised in practice, as to benumb the action of the 
Federal government, and to render it inefficient in its general 
objects, and more especially in pecuniary and foreign concerns. 
The want, too, of a separation of the Legislative, Executive, 
and Judiciary functions, worked disadvantageously in practice. 
Yet this state of things afforded a happy augury of the future 
march of our Confederacy, when it was seen that the good sense 
and good dispositions of the people, as soon as they perceived 
the incompetence of their first compact, instead of leaving its 
correction to insurrection and civil war, agreed, with one voice, 
to elect deputies to a general Convention, who should peace- 
ably meet and agree on such a Constitution as "would ensure 
peace, justice, liberty, the common defence and general welfare." 

Thomas Jefferson, Works. I. 78. 



CRITICAL COMMENT 

STORY (1833) 

The last defect which seems worthy of enumeration, is, that 
the confederation never had a ratification of the People. Upon 
this objection, it will be sufficient to quote a single passage 
from the Federalist, as it affords a very striking commen- 
tary upon some extraordinary doctrines recently promulgated. 
' ' Resting on no better foundation than the consent of the state 
legislatures, it [the confederation] has been exposed to frequent 
and intricate questions concerning the validity of its powers ; 



1821-1870] CRITICAL COMMENT 221 

and has, in some instances, given birth to the enormous doctrine 
of a right of legislative repeal. Owing its ratification to a law 
of a state, it has been contended, that the same authority might 
repeal the law, by which it was ratified. However gross a 
heresy it may be to maintain, that a party to a compact has a 
right to revoke that compact, the doctrine itself has had re- 
spectable advocates. The possibility of a question of this 
nature proves the necessity of laying the foundations of our 
national government deeper, than in the mere sanction of dele- 
gated authority. The fabric of American empire ought to rest 
on the solid basis of the consent of the jjeople. The streams of 
national power ought to flow immediately from that pure, 
original fountain of all legitimate authority." 
Joseph Story, Commentaries on the Constitution of the United States. 103. 

J. A. JAMESON (1866) 

The Constitution of the Confederation, therefore, when rati- 
fied in the manner explained, was an entirely legitimate one ; 
that is, it was proposed to the constituent bodies to be governed 
by it, and by the latter ratified and confirmed by an express 
vote ; but it was legitimate only for what it purported to be — a 
league between States, and not a national Constitution, in the 
proper sense of the word. Tested by the principles that 
should preside over the foi-mation of a Constitutioyi, it was, in its 
inception, not legitimate, for it wanted the sauction of the 
people, who, as distinct from their governments, are alone the 
constituents, or have power to ratify the Constitution. . . . 
Such was the first essay of our fathers in framing a govern- 
ment for United America. The system resulting from it, the 
joint product of inexperience and State jealousy, came soon to 
merit the general contempt from its weakness. . . . 

There is scarcely a function of a good government in which 
it would not have proved itself altogether wanting. 

John A. Jameson, Treatise on Constitutional Conventions, 147-148. 
MULFORD (1870) 

The Declaration of Independence was the act of the whole 
people ; it calls the Americans one people, and its salutation is 



222 THE ARTICLES OF CONFEDERAITON [Ch. XV 

to them as fellow citizens. There is in it the assumption of no 
separate rights, and the record of no separate wrongs. The 
Declaration in its conception transcends the spirit of any of 
these separate communities, and was beyond their separate 
grasp. It was by the whole people that the war was carried 
on, and victory was won, and peace w^as established for the 
people. There was in these events beyond argument the evi- 
dence of the divine guidance of the people. 

. . . The subsequent circumstance of the deepest significance 
is that the people sought to realize its purpose under the articles 
of a confederation. It was the assumption of a confederate 
principle, although in the nature of things it induced inevitable 
contradictions ; thus, while the separate States are represented 
as sovereign, they are not so in reality, but the attributes of 
political sovereignty are withdrawn from them ; then also the 
articles are called the Articles of Confederation, but they are 
also described as articles of perpetual union; the acts which 
were then performed under the articles were incongruous with 
a confederate conception, and thus the Congress of the people 
proceeded to enact laws as if invested with positive powers, 
and thus the great seal of the United States with its legend of 
unity was adopted; and treaties were confirmed by the Con- 
gress, in which the nation was bound by obligations to other 
nations, and the whole people was held by them ; under these 
articles also, — so far was the condition removed from an act- 
ual sovereignty in the separate communities, — in the highest 
issues, and those which involved the very being of the people, 
the ultimate determination was with nine of the thirteen com- 
munities, and this formal political action was imperative over 
the whole. But the fact of the most enduring import is that 
these articles of confederation had no continuance; but after 
a very brief period of confusion and disaster they fell away, 
partly through their inherent weakness, and partly because they 
did not correspond to the real constitution, and could not em- 
body the real spirit and purpose of the people. 

Elisha Mulford, The Nation. 331-333. 



1870-1875] CRITICAL COMMENT 223 

VON HOLST (1875) 

On the fourth of July, the Declaration of Independence was 
adopted, the import of which, as has been already remarked, 
was in accordance with the resolution of the 10th of June, 
Eight days later, on the 12th of July, the last-named committee 
submitted to congress the draft of the articles of confederation. 
On the 15th of November, 1777, the articles, after they had 
undergone several amendments, were accepted by congress, 
and it was resolved to recommend them to the legislatures of 
the states for adoption, 

. . . The articles of confederation start out with the as- 
sumption that from the date of the Declaration of Independence 
each state became de facto and de jure an independent state, 
competent henceforth to form a confederacy with the other 
states whenever it saw fit, and to the extent that it saw fit. 
How this assumption was to be reconciled with the fact that the 
congress had been in existence for years, and had actually ex- 
ercised sovereign power from the first, while the individual 
states had assumed no sovereign attitude, theoretically or prac- 
tically, toward England or other foreign countries, does not 
appear. 

, , . The changes effected by the articles of confederation 
were rather of a negative than of a positive nature. They did 
not give the state which was just coming into being a definite 
form, but they began the work of its dissolution. The essen- 
tial prerogatives which necessarily belong to a political com- 
munity in its relations with other powers, they confided by law 
to confederate authorities, from whom, in practice, they with- 
held all power. On the other hand, they confided all actual 
power to the component parts of the whole, but did not and 
could not for themselves, still less for the whole, give them the 
right to assume the responsibilities or enforce the rights which 
regulate the relations of sovereign states. 

The practical result of this was that the United States tended 
more and more to split up into thirteen independent republics, 
and in the same measure, they virtually ceased to be a member 
of the family of nations bound together by the jus gentium. 
The European powers rightly saw in the Union only a shadow 



224 THE ARTICLES OF CONFEDERATION [Ch. XV 

without substance, and besides the}^ had no occasion and no 
desire to have any relations with the individual states as sove- 
reign bodies. 

Dr. H. Von Holst, Constitutional' Hlstorij of the United States. I. 20-24. 

HART (1891) 

The Continental Congress took upon itself the management 
of the military, financial, and foreign affairs of the thirteen 
colonies which united in the movement. A year later it took 
the logical step of proclaiming to the world the fact which had 
for months been existent — the independence of the colonies 
from Great Britain. In all these acts the colonies and the 
people acquiesced. An informal but effective confederation 
was thus formed. 

During the five years following acquiescence was not always 
obtained, and the Congress went through the humiliations of a 
body unknown to constitutional law, and inadequately supplied 
with strength. But practically it was a true, though tempo- 
rary government: it made treaties, issued legal tender notes, 
borrowed money, commissioned generals, directed campaigns. 
The practical and the legal inception of the Union is to be 
found in the acceptance by the people of the work of a body 
without a legal warrant, but nevertheless actually the govern- 
ment of all the thirteen States. 

. . . The government thus established was a Staatenbund: 
to us it seems weak ; when founded it was bound by the 
strongest federal ties then known. The Congress was a weak 
organ with all the functions of government ; but it was in 
every way superior to the Swiss Diet, and, except in financial 
powers, to the States General of the Netherlands. The powers 
of government were few and feebly sustained ; but they were 
larger than those of the Holy Roman Empire. The nation 
found a Congress in existence, and as a Congress it was con- 
tinued. The powers committed to it were, in the main, such as 
had previously been exercised by the Continental Congress, and 
such as the colonies had been accustomed to see carried on for 
them by the British Home Government. Even in its defects, 
the Confederation closely resembled its predecessor, the Con- 
tinental Congress ; it was a clumsy contrivance, so far as ex- 



1891-1894J CRITICAL COMMENT 225 

ecutive and judicial matters were concerned ; and it had no 
direct relations with individuals. 

Albert Bushnell Hart, Federal Government, 54-56. 

HENRY JONES FORD (1898) 

The period of the Confederation was one in which the func- 
tions of general government were in abeyance. . . . People 
cared nothing about the principles on which the government of 
the Confederation was based, because they cared nothing for 
that government. The Congress of the Confederation, al- 
though it remained in existence fourteen years, never took root 
in the affection or respect of the people. Its sittings were pri- 
vate, and its proceedings made no appeal to public opinion. 

Henrt Jones Ford, Rise and Growth of American Politics, 36, 37. 

STEVENS (1894) 

On the very day that saw the Declaration put forth, steps 
were taken which led to the adoption, in the following year, of 
"Articles of Confederation and Perpetual Union," binding all 
the States in a " firm league of friendship with each other." 
This earliest attempt at the construction of a national gov- 
ernment established what, as the sequel proved, was neither 
national nor a government. . . . Not to trace its disastrous 
history in detail, enough to say, that its incompetency for all 
purposes for which it was established, brought about, after ten 
years of failui-e, its utter breakdown. 

C. E. Stevens, Sources of the Constitution of the United States. 40. 

FISKE (1894) 

John Dickinson is supposed to have been the principal author 
of the articles of confederation : but as the work of the com- 
mittee was done in secret and has never been reported, the 
point cannot be determined. . . . According to the language 
of the articles, the states entered into a firm league of friend- 
ship with each other ; and in order to secure and perpetuate 
such friendship, the freemen of each state were entitled to all 
the privileges and immunities of freemen in all the other states. 
Mutual extradition of criminals was established, and in each 
state full faith and credit was to be given to the records, acts, 

15 



226 THE ARTICLES OF CONFEDERATION [Ch. XV 

and judicial proceedings of every other state. This universal 
intercitizeuship was what gave reality to the nascent and feeble 
union. In all common business relations of life, the man of 
New Hampshire could deal with the man of Georgia on an 
equal footing before the law. But this was almost the only 
effectively cohesive provision in the whole instrument. 

John Fiske, Critical Period of American History. 94. 

FISHER (1897) 

It was unquestionably a very weak government, — a mere 
league with so few of the attributes of federalism, and those 
few so restricted, that it was not a federal or a national gov- 
ernment in anjr true sense of the word. The fashion has pre- 
vailed for a long time of attacking it in very severe terms, and 
even of questioning the patriotism of the men who framed it. 
But we must remember that it was simply a link in a long chain 
of evolution which had been progressing for over a hundred 
years, and continued, as we shall see, in the same steady 
course. It was a great advance on all the plans that had pre- 
ceded it, and, for purposes of development that was all that 
was required. 

The criticisms on its lack of federal power began almost as 
soon as it appeared. When signed by the members of Con- 
gress and sent to the States for ratification in 1778, most of 
those States had finished their new constitutions, ou which they 
had been engaged for several years. Constitution-making 
was the order of the day ; everybody was prepared for discus- 
sion, and no previous plan of union received such serious and 
trained consideration. 

Though the prevailing sentiment seems to have been that not 
enough power was given, there were many who saw in the 
Articles of Confederation a menace to the sovereignty of the 
States. But even this state rights party, while they wished 
greater safeguards for local liberty, wanted at the same time 
more power and efficiency in the general government. 

Sidney George Fisher, The Evolution of the Constitution of the United 
States. 249, 250. 



1787] THE NORTHWEST ORDINANCE 227 



Chapter XVI 
THE NORTHWEST ORDINANCE (1787) 

SUGGESTIONS 

The Ordinance of 1787 contained the essence of all later constitu- 
tional government for national domain. It was by far the most 
important piece of general legislation of the epocli preceding the 
Constitutional Convention. 

The document was the conception of Dr. Manasseh Cutler of Massa- 
chusetts ; it was reported to Congress by Nathan Dane, as chairman 
of a committee to whom the subject had been I'eferred, and it was 
passed with almost no alteration. The question of the competence 
of Congress to pass this frame of government has given occasion to 
much argument ; but it is of little moment, as the first Congress 
under the Constitution re-enacted it. 

The picturesque side of history comes out in the study of this docu- 
ment. With the exception of the Puritan emigration, perhaps no one 
episode in the growth of America sets forth more distinctly the con- 
ditions, hopes, and aspirations of the people than this movement on 
the part of a body of New Englanders, to open up the Northwest 
Territory. The fact that the territory itself was ceded to the mother- 
government by the different child-states gave a personal interest to 
the frame of laws whereby this territory was to be governed. In the 
perusal of this document it is well to trace the special quality of civil 
rights, Habeas Corpus, trial by jury, bail, fines and punishments, treat- 
ment of Indians, education, freedom of religion, and emancipation of 
the negro. These enlightened provisions of this Ordinance should be 
examined carefully as in a measure foreshadowing the doctrines of the 
last three amendments of the Constitution. 

The Northwest Ordinance is in reality a colonial charter, and the 
foundation of the government of our later colonies — usually called 
territories. Hence this document has an important relation to the 
problems of colonial government which of late press upon the United 
States. 

For Outlines and Material, see Appendix A. 



228 THE NORTHWEST ORDINANCE [Ch. XVI 

DOCUMENT 

The Ordinance of 1787 
Journals of An ORDINANCE FOR THE GOVERNMENT of 
XIL 85-93. ™^ TERRITORY of the UNITED STATES, 

North- West of the RIVER OHIO 

BE IT ORDAINED by the United States in Con- 
gress assembled, Tliat the said territory, for the 
purposes of temporary government, be one district ; 
subject, however, to be divided into two districts, 
as future circumstances may in the opinion of Con- 
gress, make it expedient. 

Be it ordained by the authority aforesaid, That 
the estates, both of resident and non-resident pro- 
prietors in the said territory, dying intestate, shall 
descend to, and be distributed among their children, 
and the descendants of a deceased child in equal 
parts ; the descendants of a deceased child or 
grandchild, to take the share of their deceased par- 
ent in equal parts among them : And where there 
shall be no children or descendants, then in equal 
parts to the next of kin, in equal degree ; and 
among collaterals, the children of a deceased brother 
or sister of the intestate, shall have in equal parts 
among them, their deceased parents' share ; and 
there shall in no case be a distinction between kin- 
dred of the whole and half blood; saving in all 
cases to the widow of the intestate, her third part 
of the real estate for life, and one third part of the 
personal estate ; and tliis law relative to descents 
and dower, shall remain in full force until altered 
by the legislature of the district. — And until the 
governor and judges shall adopt laws as herein 
after mentioned, estates in the said territory may 
be devised or bequeathed by wills in writing, signed 
and sealed by him or her, in whom the estate may 
be (being of full age) and attested by three wit- 



1787] TEXT 229 

nesses ; — and real estates may be conveyed by 
lease and release, or bargain and sale, signed, 
sealed, and delivered by the person being of full 
age, in whom the estate may be, and attested by 
two witnesses, provided such wills be duly proved, 
and such conveyances be acknowledged, or the ex- 
ecution thereof duly proved, and be recorded within 
one year after proper magistrates, courts, and reg- 
isters shall be appointed for that purpose ; and per- 
sonal property may be transferred by delivery; 
saving, however, to the French and Canadian in- 
habitants, and other settlers of the Kaskaskies, 
Saint Vincent's, and the neighbouring villages, who 
have heretofore professed themselves citizens of 
Virginia, their laws and customs now in force 
among them, relative to the descent and convey- 
ance of property. 

Be it ordained by the authority aforesaid. That 
there shall be appointed from time to time, by Con- 
gress, a governor, whose commission shall continue 
in force for the term of three years, unless sooner 
revoked by Congress, he shall reside in the district, 
and have a freehold estate therein, in one thousand 
acres of land, while in the exercise of his oflice. 

There shall be appointed from time to time, by 
Congress, a secretary, whose commission shall con- 
tinue in force for four years, unless sooner revoked ; 
he shall reside in the district, and have a freehold 
estate therein, in five hundred acres of land, while 
in the exercise of his office ; it shall be his duty to 
keep and preserve the acts and laws passed by the 
legislature, and the public records of the district, 
and the proceedings of the governor in his executive 
department ; and transmit authentic copies of such 
acts and proceedings, every six months, to the sec- 
retar}^ of Congress : There shall also be appointed 
a court to consist of three judges, any two of whom 
to form a court, who shall have a common law juris- 
diction, and reside in the district, and have each 



230 



THE NORTHWEST ORDINANCE [Ch. XVI 



This gave 
rise to colli- 
sions be- 
tween the 
government 
and the 
people. 



therein a freehold estate in five hundred acres of 
land, while in the exercise of their offices ; and their 
commissions shall continue in force during good 
behaviour. 

The governor and judges, or a majority of them, 
shall adopt and publish in the district, such laws of 
the original states, criminal and civil, as may be 
necessary, and best suited to the circumstances of 
the district, and report them to Congress, from time 
to time ; which laws shall be in force in the district 
until the organization of the general assembly 
therein, unless disapproved of by Congress ; but 
afterwards the legislature shall have authority to 
alter them as they shall think fit. 

The governor for the time being, shall be com- 
mander in chief of the militia, appoint and commis- 
sion all officers in the same, below the rank of 
general officers ; all general officers shall be ap- 
pointed and commissioned by Congress. 

Previous to the organization of the general as- 
sembly, the governor shall appoint such magistrates 
and other civil officers, in each county or township, 
as he shall find necessary for the preservation of 
the peace and good order in the same: After the 
general assembly shall be organized, the powers and 
duties of magistrates and other civil officers shall be 
regulated and defined by the said assembly ; but all 
magistrates and other civil officers, not herein other- 
wise directed, shall, during the continuance of this 
temporally government, be appointed by the gov- 
ernor. 

For the prevention of crimes and injuries, the 
laws to be adopted or made shall have force in all 
parts of the district, and for the execution of pro- 
cess, criminal and civil, the governor shall make 
proper divisions thereof — and he shall proceed 
from time to time, as circumstances may require, 
to lay out the parts of the district in which the 
Indian titles shall have been extinguished, into 



1787] TEXT 231 

counties and townships, subject, however, to such 
alterations as may thereafter be made by the legis- 
lature. 

So soon as there shall be five thousand free male Such a gov- 

inhabitants, of fuU ao;e, in the district, upon givino; eniment was 

. ' 1 o » organized 

proof thereof to the governor, they shall receive later, 
authority, with time and place, to elect representa- 
tives from their counties or townships, to represent 
them in the general assembly; provided that for 
every five hundred free male inhabitants, there shall 
be one representative, and so on progressively with 
the number of free male iuhabitants shall the right 
of representation increase, until the number of rep- 
resentatives shall amount to twenty-five; after 
which the number and proportion of representatives 
shall be regulated by the legislature : provided that 
no person be eligible or qualified to act as a repre- 
sentative, unless he shall have been a citizen of one 
of the United States three years, and be a resident 
in the district, or unless he shall have resided in the 
district three years ; and in either case shall like- 
wise hold in his own right, in fee simple, two hun- 
dred acres of laud within the same : provided also, 
that a freehold in fifty acres of land in the district, 
having been a citizen of one of the states, and being 
resident iu the district, or the like freehold and two 
years residence in the district shall be necessary to 
qualify a man as an elector of a representative. 

The representatives thus elected, shall serve for 
the term of two years ; and in case of the death of 
a representative, or removal from office, the gov- 
ernor shall issue a writ to the county or township, 
for which he was a member, to elect another in his 
stead, to serve for the residue of the term. 

The general assembly, or legislature, shall consist The appoint- 
of the governor, legislative council, and a house of ive council 
representatives. The legislative council shall con- Y^3 ^^ ii^sti- 
sist of five members, to continue in office five years, disliked, 
unless sooner removed by Congress ; a.ny three of 



232 



THE NORTHWEST ORDINANCE [Ch. XVI 



This has 
been the 
practice for 
territories 
ever since. 



whom to be a quorum : and the members of the 
council shall be nominated and appointed in the fol- 
lowing manner, to wit : As soon as representatives 
shall be elected, the governor shall appoint a time 
and place for them to meet together, and, when 
met, they shall nominate ten persons, residents in 
the district, and each possessed of a freehold in five 
hundred acres of land, and return their names to 
Congress ; five of whom Congress shall appoint and 
commission to serve as aforesaid ; and whenever a 
vacancy shall happen in the council, by death or 
removal from office, the house of representatives 
shall nominate two persons, qualified as aforesaid, 
for each vacancy, and return their names to Con- 
gress ; one of whom Congress shall appoint and 
commission for the residue of the term. And every 
five years, four months at least before the expira- 
tion of the time of service of the members of coun- 
cil, the said house shall nominate ten persons, 
qualified as aforesaid, and return their names to 
Congress ; five of whom Congress shall appoint aud 
commission to serve as members of the council five 
years, unless sooner removed. And the governor, 
legislative council, and house of representatives, 
shall have authority to make laws, in all cases, for 
the good government of the district, not repuguant 
to the principles and articles in this ordinance es- 
tablished and declared. And all bills having passed 
by a majority in the house, and by a majority in 
the council, shall be referred to the governor for his 
assent ; but no bill or legislative act whatever, shall 
be of any force without his assent. The governor 
shall have power to convene, prorogue and dissolve 
the general assembly, when in his opinion it shall 
be expedient. 

The governor, judges, legislative council, sec- 
retary, and such other officers as Congress shall 
appoint in the district, shall take an oath or affirma- 
tion of fidelity, and of office ; the governor before 



1787] TEXT 233 

the president of Congress, and all other officers be- 
fore the governor. As soon as a legislature shall 
be formed in the district, the council and house as- 
sembled, in one room, shall have authority, by joint 
ballot, to elect a delegate to Congress, who shall 
have a seat in Congress, with a right of debating, 
but not of voting during this temporary govern- 
ment. 

And for extending the fundamental principles of 
civil and religious liberty, which form the basis 
whereon these republics, their laws and constitu- 
tions are erected ; to fix and establish those prin- 
ciples as the basis of all laws, constitutions, and 
governments, which forever hereafter shall be 
formed in the said territory : to provide also for the 
establishment of states, and permanent government 
therein, and for their admission to a share in the 
federal councils on an equal footing with the orig- 
inal states, a,t as early periods as may be consistent 
with the general interest : 

It is hereby ordained and declared, by the au- This is an 
thority aforesaid. That the following articles shall ^^^^^^f^t^f" 
be considered as articles of compact between the principle of 
original states, and the people and states in the said limited de- 
territory, and forever remain unalterable, unless by ^' 
common consent, to wit : 

Article the first. No person, demeaning himself 
in a peaceable and orderly manner, shall ever be Freedom of 
molested on account of his mode of worship or worship first 
religious sentiments, in the said territory. United 

Article the second. The inhabitants of the said States. 

territory, shall always be entitled to the benefits of ^^® "^^^Ij^^o 

the writ of habeas corpus, and of the trial by jury ; 40. > > > 

of a proportionate representation of the people in This article 

the legislature, and of judicial proceedings accord- T^^ copied 

ing to the course of the common law. All persons Constitution 

shall be bailable, unless for capital offences, where of the United 

States It 
the proof shall be evident, or the presumption great, ^^j^g ^-^^ q^^_ 

AU fines shall be moderate ; and no cruel or unusual growth of 



234 



THE NORTHWEST ORDINANCE [Ch. XVI 



the trade dis- 
turbance 
throughout 
the country. 



The first 
recognition 
after the 
Revolution 
that public 
education 
was the duty 
of govern- 
ment. 



There seems 
no doubt 
that the 
Northwest 
Territory 
was consid- 
ered to be an 
integral part 
of the United 
States, sub- 
ject to the 
limitations, 
and enjoying 
the privi- 
leges of the 
Articles of 
Confedera- 
tion- 



punishments shall be inflicted. No man shall be 
deprived of his liberty or property, but by the judg- 
ment of his peers, or the law of the land, and 
should the public exigencies make it necessary, for 
the common preservation, to take any person's 
property, or to demand his particular services, full 
compensation shall be made for the same. And in 
the just preservation of rights and property, it is 
understood and declared, that no law ought ever to 
be made, or have force in the said territory, that 
shall in any manner whatever interfere with, or 
affect private contracts or engagements, bona fide, 
and without fraud previously formed. 

Article the third. Religion, morality and knowl- 
edge, being necessary to good government and the 
happiness of mankind, schools and the means of 
education shall forever be encouraged. The utmost 
good faith shall always be observed towards the 
Indians ; their lands and property shall never be 
taken from them without their consent ; and in their 
property, rights and liberty, they never shall be in- 
vaded or disturbed, unless in just and lawful wars 
authorised by Congress ; but laws founded in 
justice and humanity shall from time to time be 
made, for preventing wrongs being done to them, 
and for preserving peace and friendship with 
them. 

Article the fourth. The said territory, and the 
states which may be formed therein, shall forever 
remain a part of this confederacy of the United 
States of America, subject to the articles of con- 
federation, and to such alterations thei'ein, as shall 
be constitutionally made ; and to all the acts and 
ordinances of the United States in Congress as- 
sembled, conformable thereto. The inhabitants 
and settlers in the said territory, shall be subject to 
pay a part of the federal debts, contracted or to be 
contracted, and a proportional part of the expences 
of government, to be apportioned on them by Con- 



1787] TEXT 235 

gress, according to the same common rule and 
measure, by which apportionments thereof shall be 
made on the other states ; and the taxes for paying 
their proportion, shall be laid and levied by the 
authority and direction of the legislatures of the 
district or districts or new states, as in the original 
states, within the time agreed upon by the United 
States in Congress assembled. The legislatures of 
those districts or new states, shall never interfere 
with the primary disposal of the soil by the United 
States in Congress assembled, nor with any regula- 
tions Congress may find necessary for securing the 
title in such soil to the bona fide purchasers. No 
tax shall be imposed on lands the property of the 
United States ; and in no case shall non-resident 
proprietors be taxed higher than residents. The 
navigable waters leading into the Missisippi and St. 
Lawrence, and the carrying places between the 
same, shall be common highways, and forever free, 
as well to the inhabitants of the said territory, as to 
the citizens of the United States, and those of any 
other states that may be admitted into the con- 
federacy, without any tax, impost, or duty therefor. 
Article the fifth. There shall be formed in the 
said territory, not less than three, nor more than 
five states ; and the boundaries of the states, as 
soon as Virginia shall alter her act of cession, and 
consent to the same, shall become fixed and estab- 
lished as follows, to wit : The western state in the 
said territory, shall be bounded by the Missisippi, 
the Ohio and "Wabash rivers ; a direct line drawn 
from the Wabash and Post Vincents due north to 
the territorial line between the United States and 
Canada ; and by the said territorial line to the lake 
of the Woods and Missisippi. The middle state 
shall be bounded by the said direct line, the Wabash 
from Post Vincents to the Ohio ; by the Ohio, by a 
direct line drawn due north from the mouth of the 
Great Mianji, to the said territorial line, and by the 



236 THE NORTHWEST ORDINANCE [Ch. XVI 

said territorial line. The eastern state shall be 
bounded by the last mentioned direct line, the Ohio, 
Pennsylvania, and the said territorial line : provided 
however, and it is further understood and declared, 
that the boundaries of these three states, shall be 
subject so far to be altered, that if Congress shall 
hereafter find it expedient, they shall have authority 
to form one or two states in that part of the said 
territory which lies north of an east and west line 
drawn through the southerly bend or extreme of 
The Colonial lake Michigan. And whenever any of the said 
status of the states, shall have sixty thousand free inhabitants 
Territory therein, such state shall be admitted, by its dele- 
was intended gates, into the Congress of the United States, on an 
rarv^ ^*^™^°' ®^"^1 footing with the original states, in all respects 
whatever ; and shall be at liberty to form a per- 
manent constitution and state government : pro- 
vided the constitution and government so to be 
formed, shall be republican, and in conformity to 
the principles contained in these articles ; and so far 
as it can be consistent with the general interest of 
the confederacy, such admission shall be allowed af 
an earlier period, and when there may be a less 
number of free inhabitants in the state than sixty 
thousand. 
This article Article the sixth. There shall be neither slavery 
did not coni- nor involuntary servitude in the said territorj'^, 
cate^the ^ ^' otherwise than in the punishment of crimes, whereof 
Northwest to the party shall have been duly convicted : provided 

freedom, always, that anv person escaping into the same, 
since slaves -^ ' -^ ^ i » ' 

then in the from whom labour or service is lawfully claimed in 

territory ^ny one of the oi'iginal states, such fugitive may be 
could be held » ' n ./ 

so lono- as lawfully reclaimed, and conveyed to the person 
they lived, claiming his or her labour or service as aforesaid. 
practic^Hy -^^ ^^ ordained by the authority aforesaid, That 

an anti-slav- the resolutions of the 23d of April, 1784, relative to 
ery clause, ^|-,g subject of this ordinance, be, and the same are 
hereby repealed and declared null and void. 



1787] CONTEMPORARY EXPOSITION 237 

CONTEMPORARY EXPOSITION 

DANE (1787) 

New York, July 16, 1787. 
Dear Sir : — I am obliged to you for yours of the 11th inst. 
With pleasure I comrauuicate to you what we are doing in Con- 
gress, not so much from a consciousness that what we do is 
well done, as from a desire that you may be acquainted with 
our proceedings. We have been much engaged in business 
for ten or twelve days past, for a part of which we have had 
8 states. There appears to be a disposition to do business ; 
and the arrival of R. H. Lee is of considerable importance. I 
think his character serves at least in some degree, to check the 
effects of the feeble habits and too [tardy ?] modes of thinking 
in some of his countrymen. We have been employed about 
several objects — the principal ones of which have been the 
Government inclosed, and the Ohio Purchase. The former 
you will see is completed, and the latter will be probably com- 
pleted to-morrow. We tried one day to patch up M. S. P. 
systems of W. Govern't. Started new ideas, and committed 
the whole to Carriugton, Dane, R. H. Lee, Smith, and Kean. 
We met several times, and at last agreed on some principles, 
at least Lee, Smith and myself. We found ourselves rather 
pressed ; the Ohio Company appeared to purchase a large tract 
of the Federal lands — about 6 or 7 millions of acres ; and we 
wanted to abolish the old system, and get a better one for the 
Government of the country — and we finally found it necessary 
to adopt the best system we could get. All agreed, finally, to 
the inclosed, except A. Yates. He appeared in this case, as 
in most others, not to understand the subject at all. I think 
the number of free inhabitants, 60,000, which are requisite 
for the admission of a new State into the Confederacy, is 
too small ; but, having divided the whole territory into three 
States, this number appeared to me to be less important. 
Each State, in the common course of things, must become 
important soon after it shall have that number of inhabitants. 
The Eastern State of the three will probably be the first, 
and more important than the rest, and will, no doubt, be 
settled chiefly by Eastern people ; and there is, I think, full 



238 THE NORTHWEST ORDINANCE [Ch. XVI 

an equal chance of its adopting Eastern politics. When I 
drew the Ordinance, which passed (a few words excepted) 
as I originally formed it, I had no idea the States would agree 
to the Sixth art. prohibiting slavery, as only Massa. of the 
Eastern States was present, and therefore omitted it in the 
draft ; but, finding the House favourably disposed on this sub- 
ject, after we had completed the other parts, I moved the art., 
which was agreed to without opposition. We are in a fair way 
to fix the terms of our Ohio sale, etc. ; we have been upon it 
steadily three days. The magnitude of the purchase makes us 
very cautious about the terms of it, and the security neces- 
sary to insure the performance of them. 

We have directed the Board to inquire into and report on 
Hothers affairs, etc. 

Massa. Legisa. was prorogued the 7th inst., having con- 
tinued the Tender Act, as it is called, to Jan. 1, 1788, and hav- 
ing passed no other Act of importance, except what, I presume, 
you have seen, respecting the raising of troops, and the powers 
of the Governor to pursue the rebels, etc. 

You ask me how I like my new colleagues. Sedgwick, you 
know, we all esteem, but I fear he will not make his attendance 
an object. Thatcher, I am quite unacquainted with. I do not 
know whether Mr. Otis, at his period of life, and under his mis- 
fortune, will enter with vigour into Federal politics. I wish his 
accounts with the Union had been settled, etc. 

Nothing occurs worth particular notice. 

Your affecta. friend, 
Hon. Rufus King, Esq. N. Dane. 

P. S. — States present: Massa., N. Y., N. J., Delaware, 
Virga., N. Cara., So. Carolina, and Georgia. Brother Holton 
is rather an invalid, is not well able to take an active part in 
business, but I think supports pretty good Eastern politics. 

Nathan Dane, iu Cutlers, Life ofManasseh Cutler. I. 371-373. 

CRITICAL COMMENT 
WEBSTER (1830) 

At the foundation of the constitution of these new North- 
western States lies the celebrated Ordinance of 1787. Wg 



1830-1833] CRITICAL COMMENT 239 

are accustomed, Sir, to praise the lawgivers of antiquity ; we 
help to perpetuate the fame of Solon and Lycurgus ; but I 
doubt whether one single law of any lawgiver, ancient or 
modern, has produced effects of more distinct, marked, and 
lasting character than the Ordinance of 1787. That instrument 
was drawn by Nathan Dane, then and now a citizen of Massa- 
chusetts. It was adopted, as I think I have understood, with- 
out the slightest alteration ; and certainly it has happened to 
few men to be the authors of a political measure of more large 
and enduring consequence. It fixed for ever the character of 
the population in the vast regions northwest of the Ohio, b}^ 
excluding from them involuntary servitude. It impressed on 
the soil itself, while it was yet a wilderness, an incapacity to 
sustain any other than freemen. It laid the interdict against 
personal servitude, in original compact, not only deeper than 
all local law, but deeper, also, than all constitutions. Under 
the circumstances then existing, I look upon this original and 
seasonable provision as a real good attained. 

Daniel Webster, Works. III. 263, 264. 

CHASE (1833) 

By that [ordinance] of 1787, provision was made for suc- 
cessive forms of territorial government, adapted to successive 
steps of advancement in the settlement of the western country. 
It comprehended an intelligible system of law on the descent 
and conveyance of real property, and the transfer of personal 
goods. It also contained five articles of compact between the 
original states, and the people and states of the territory, 
establishing certain great fundamental principles of govern- 
mental duty and private right, as the basis of all future con- 
stitutions and legislation, unalterable and indestructible except 
by that final and common ruin, which as it has overtaken all 
former systems of human polity, may yet overwhelm our Amer- 
ican union. Never, probably, in the history of the world, did a 
measure of legislation so accurately fulfil, and yet so mightily 
exceed the anticipations of the legislators. The ordinance has 
been well described, as having been a pillar of cloud by day, 
and of fire by night, in the settlement and government of the 
northwestern states. "When the settlers went into the wilder- 



240 THE NORTHWEST ORDINANCE [Ch. XVI 

ness, they found the law already there. It was impressed upon 
the soil itself, while it yet bore up nothing but the forest. The 
purchaser of land became, by that act, a party to the compact, 
and bound by its perpetual covenants, so far as its conditions 
did not conflict with the terms of the cessions of the states. 

Salmon P. Chase, Sketch of the History of Ohio. 8-9. 

BANCROFT (1S34) 

Before the Federal Convention had referred its resolutions to 
a committee of detail, an interlude in Congress was shapening 
the character and destiny of the United States of America. 
Sublime and humane and eventful in the history of mankind 
as was the result, it will take not many words to tell how it 
was brought about. For a time wisdom and peace and justice 
dwelt among men, and the great Ordinance, which could alone 
give continuance to the union, came in serenity and stillness. 
Every man that had a share in it seemed to be led by an invisi- 
ble hand to do just what was wanted of him; all that was 
wrongfully undertaken fell to the ground to wither by the way- 
side ; whatever was needed for the happy completion of the 
mighty work arrived opportunely, and just at the right moment 
moved into its place. 
Geokge Banckoft, History of the United States (final revision). VI. 277. 

JACOB BURNET (1847) 

The great principles of civil and religious liberty contained 
in this invaluable document, were guaranteed to the people of 
the Territory and their posterity forever, by the venerable 
Fathers of the Revolution, which entitled them to endless 
gratitude. 

Jacob Burnet, Notes on the Early Settlement of the North West Terri- 
tory. 304. 

HOAR (1887) 

The Ordinance of 1787 belongs with the Declaration of 
Independence and the Constitution. It is one of the three title 
deeds of American constitutional liberty. As the American 
youth for uncounted centuries shall visit the capital of his 
country — strongest, richest, freest, happiest of the nations of 



1888] CRITICAL COMMENT 241 

the earth — from the stormy coast of New England, from the 
luxuriant regions of the Gulf, from the lakes, from the prairie 
and the plain, from the Grolden Gate, from far Alaska — he 
will admire the evidences of its grandeur and the monuments of 
its historic glory. He will find there rich libraries and vast 
museums and great cabinets, which show the product of that 
matchless inventive genius of America, which has multiplied a 
thousand fold the wealth and comfort of human life. He will 
see the simple and modest portal through which the great line 
of the Republic's chief magistrates have passed at the call of 
their country to assume an honour surpassing that of emperors 
and kings, and through which they have returned, in obedience 
to her laws, to take their place again as equals in the ranks of 
their fellow-citizens. He will stand by the matchless obelisk 
which, loftiest of human structures, is itself but the impei'fect 
type of the loftiest of human characters. He will gaze upon 
the marble splendours of the capitol, in whose chambers are 
enacted the statutes under which the people of a continent 
dwell together in peace, and the judgments are rendered which 
keep the forces of state and nation alike within their appointed 
bounds. He will look upon the record of great wars and the 
statues of great commanders. But if he knew his country's 
history, and considered wisely the sources of her glory, there is 
nothing in all these which will so stir his heart as two faded 
and time-soiled papers, whose characters were traced by the 
hand of the fathers a hundred years ago. They are the original 
records of the acts which devoted this nation forever to equality, 
to education, to religion and to liberty. One is the Declaration 
of Independence, the other the Ordinance of 1787. 

George F. Hoar, Oration at Centennial at Marietta. 
HINSDALE (1888) 

We have seen that four different ordinances had been pre- 
viously reported to Congress, and that one had already been 
enacted. The fifth and great Ordinance, as Mr. Bancroft says, 
embodied the best parts of all its predecessors. But it em- 
bodied more ; and all the evidence points to the conclusion 
that much of the new material was contained in the papers 
that Dr. Cutler handed to the committee, July 10th, after be 

16 



242 THE NORTHWEST ORDINANCE [Ch. XVI 

had studied the ordinance then pending. Whoever may have 
brought them forward, the imperishable principles of polity 
woven into the Ordinance of 1787 were the ripe fruit of many 
centuries of Anglo-Saxon civilization ; but the best places to 
search for them are the bills of rights of the Revolutionary con- 
stitutions. . . . No act of American legislation has called out 
more eloquent applause than the Ordinance of 1787. States- 
men, historians, and jurists have vied with one another in cele- 
brating its praises. In one respect it has a proud pre-eminence 
over all other acts of legislation on the American statute-books. 
It alone is known by the date of its enactment, and not by its 
subject-matter. It was more than a law or statute. It was a 
constitution for the Territory Northwest of the River Ohio. 
More than this, it was a model for later legislation relating to 
the national territories ; and some of its provisions, particularly 
the prohibition of slavery, stand among the greatest precedents 
of our history. 

Burke A. Hinsdale, The Old Northivest^ 273, 276. 

CUTLERS (1888) 

Up to the time of Dr. Cutler's arrival in New York, the 
labors of Congress had brought forth abstractions and skele- 
tons, mere outlines. It is not improbable that the presentation 
of a scheme of settlement, such as had " never been attempted in 
America," aroused the zeal and stimulated the efforts of Con- 
gress in a more practical direction, and led to the adoption of 
acceptable lines of policy in organizing the " new state" that 
had been so long the dream of an army by whose valor and 
sacrifices the territory had been acquired. That the organic law 
should have been new-modeled, and made acceptable to the men 
who were ready to occupy and cultivate that distant territory, 
is not surprising. 

It may be claimed for the Ordinance itself, that it is the only 
instance in human history, (with a single exception) where 
the laws and constitutions have been prepared beforehand, 
pre-arranged, and projected into a territory prior to its occupa- 
tion by its future inhabitants. The Divine economy did so 
arrange, pre-ordain, and publish to His chosen people the law, 
1 Copyright, 1899, by Silver, Burdett & Co. 



1888J CRITICAL COMMENT 243 

ordinance, and polity that was to govern them after they had 
entered their promised land ; but, throughout the many changes, 
migrations, and conquests under which the human race has 
spread itself over and occupied the earth, either the will of the 
conqueror after conquest and occupation, or the growth of 
governmental principles subsequently, has been the origin of 
political and civil institutions. Here, however, is an attempt 
to prepare beforehand forms of government, laws, and principles 
upon bases that were intended to remain forever unalterable. 
We now have a century to attest their intrinsic value. Not the 
least valuable part of this wise forecast and preparation was 
that provision reaching down to the virgin soil that gave abso- 
lute ownership of it in convenient quantities and on terms that 
secured to each person an opportunity to acquire a homestead 
of his own, with provision for those civil divisions, townships, 
where the " essence of ownership," control, could be exerted 
politically in all the important social and civil affairs of life. 

Upon this foundation, guarantees of human rights, in their 
broadest application, with equality before the law, were intro- 
duced into the governmental structure. In addition to these 
elements of futui'e stability, the educational and moral forces 
are distinctly recognized and incorporated into the foundations. 
Freedom of worship, without governmental control, direction, 
or patronage; liberty, religion, morality, and knowledge — all 
stand side by side with the right of jury trial, habeas corpus, 
inviolability of private contracts, and all other usual and 
essential safeguards. 

Cutlers, Life of Rev. Manasseh Cutler. 368, 369. 



244 FEDERAL CONSTITUTION [Ch. XVII 



Chaptee XVII 
THE CONSTITUTION OF THE UNITED STATES (1787) 

SUGGESTIONS 

The CoBStitutional Convention at Philadelphia met May 29, 1787. 
All the States were represented except Rhode Island. Washington, 
Franklin, Hamilton, and Madison were among the fifty-five mem- 
bers. The delegates sat with closed doors, keeping their proceed- 
ings secret. They decided that instead of revising the Articles of 
Confederation they would draw up an entirely new Constitution. 
George Washington presided over the convention, and Benjamin 
Franklin, Robert Morris, James Madison, Rufus King, Roger Sher- 
man, Alexander Hamilton, John Dickinson, Charles C. Pinckney, 
J. Rutledge, and Gouverneur Morris, were among its distinguished 
members. Madison, Hamilton, Washington, and Franklin took the 
leading part in the great work of drafting the new Constitution, and 
after its adoption by the convention, Madison and Hamilton used 
their influence, with great effect, to urge its ratification by the 
states, especially New York. After a stormy session of nearly four 
months, during which the convention several times threatened to 
break up in hopeless dispute, the Constitution was at last adopted. 

The fund of exposition and comment upon this document and its 
group of framers is of such extent that the few criticisms for which 
there is room might be many times multiplied. The Constitution, 
founded on compromises, made serviceable by its elasticity, and 
supplemented by an imperfect bill of rights, is a two-handed sword 
supporting the Federal government and yet ever ready to serve its 
purpose in defending the dignity of the State. The historical student 
who has made the previous documents a basis for the study of the 
Constitution may easily trace precedents for nearly all its strongest 
features. The supremacy of the Supreme Court, the power of the 
Executive, and the legislative authority of Congress unite in creating 
a well knit triune government such as was new in the history of 
mankind. 

For Outlines and Analysis, see Appendix B, § 4. 



1787] TEXT 245 

DOCUMENT 
Constitution of the United States of America [1787-1789]. 

We the People of the United States, in Order to This text 
form a more perfect Union, establish Justice, in- ^ ^''om 
sure domestic Tranquillity, provide for the com- History 
mon defence, promote the general Welfare, and Leaflets No. 
secure the Blessings of Liberty to ourselves and it is'reprinted 
our Posterity, do ordain and establish this Con- from the 

STiTUTiON for the United States of America. original _ 

manuscript. 
Precedents 
ARTICLE. I. for nearly all 

the import- 

Section. 1. All legislative Powers herein granted ant features 

Oitliis no OH- 

shall be vested in a Congress of the United States, ment are 

which shall consist of a Senate and House of found in 
-p, ... English Con- 

Representatives, stitutional 

Section. 2. [§ 1.] The House of Representatives documents, 
shall be composed of Members chosen every second be*trami™^^ 
Year by the People of the several States, and the through the 
Electors in each State shall have the Qualifications colonial 
requisite for Electors of the most numerous Branch state consti- 
of the State Legislature. tutions into 

[§ 2.] No Person shall be a Representative who jjjgjjt. Com- 

shall not have attained to the Age of twenty-five pare Pream- 

Years, and been seven Years a Citizen of the United ble with Arts. 
' ot Conf., 1. 

States, and who shall not, when elected, be an In- and iii. 

habitant of that State in which he shall be chosen. Compare 1 

[§ 3.] Representatives and direct Taxes shall be ^^^?^^^^ 

apportioned among the several States which may be Confeder- 

in eluded within this Union, according to their respec- ation, v. 

five Numbers, [which shall be determined by adding Superseded 

to the whole Number of free Persons, including ^jje^ljment 

those bound to Service for a Term of Years, and ex- The contest 

eluding Indians not taxed, three fifths of all other f^^^F *^^ 

Persons.] The actual Enumeration shall be made resentation 

within three Years after the first Meeting of the ended in the 

Congress of the United States, and within every Compromise 

subsequent Term of ten Years, in such Manner as which gave 



246 FEDERAL CONSTITUTION [Ch. XVII 

the states they shall by Law direct. The Number of Represen- 

equal repre- tatives shall not exceed one for every tMrty Thou- 

the Senate sand, but each State shall have at Least one 

and propor- Representative ; [and until such enumeration shall 

sentation^in ^® made, the State of New Hampshire shall be 

the House, entitled to chuse three, Massachusetts eight, Rhode- 

Ji*f *^^^*^®' Island and Providence Plantations one, Connecticut 

nfths repre- ' 

sentation of Ave, New- York six, New Jersey four, Pennsylvania 

fJ^'^'S °^*'^^ sight, Delaware one, Maryland six, Virginia ten, 

Ratio "was North Carolina five, South Carolina five, and 

object of the Georgia three.] 

ComproSe. t§ ^•] ^^^^ vacancies happen in the Representa- 
tion from any State, the Executive Authority thereof 
shall issue Writs of Election to fill such Vacancies. 
[§ 5.] The House of Representatives shall chuse 
their Speaker and other Officers ; and shall have the 
sole Power of Impeachment. 

Section. 3. [§ 1.] The Senate of the United 
States shall be composed of two Senators from each 
State chosen by the Legislature thereof, for six 
Years ; and each Senator shall have one Vote. 

[§ 2.] Immediately after they shall be assembled 
in Consequence of the first Election, they shall be 
divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be 
vacated at the Expiration of the second Year, of the 
second Class at the Expiration of the fourth Year, 
and of the third Class at the Expiration of the sixth 
Year, so that one third may be chosen every second 
Year ; and if Vacancies happen by resignation, or 
otherwise, during the Recess of the Legislature of 
any State, the Executive thereof may make tempo- 
rary Appointments until the next Meeting of the 
Legislature, which shall then fill such Vacancies. 

[§ 3.] No Person shall be a Senator who shall not 
have attained to the Age of thirty Years, and been 
nine Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that 
State for which he shall be chosen. 



1787] TEXT '2,4:1 

[§ 4.] The Vice President of the United States, 
shall be President of the Senate, but shall have no 
Vote, unless they be equally divided. 

[§ 5.] The Senate shall chuse their other Officers, 
and also a President pro tempore, in the Absence of 
the Vice President, or when he shall exercise the 
Office of President of the United States. 

[§ 6.] The Senate shall have the sole Power to try 
all impeachments. When sitting for that Purpose, See Art. 
they shall be on Oath or Affirmation. When the "• ^^^t. 4. 
President of the United States is tried, the Chief 
Justice shall preside : And no Person shall be con- 
victed without the Concurrence of two thirds of the 
Members present. 

[§ 7.] Judgment in Cases of Impeachment shall 
not extend further than to removal from Office, and 
disqualification to hold and enjoy any Office of 
honor, Trust or Profit under the United States ; but 
the Party convicted shall nevertheless be liable and 
subject to Indictment, Trial, Judgment and Punish- 
ment, according to Law. 

Section. 4. [§ 1.] The Times, Places and Man- The only 
ner of holding Elections for Senators and Repre- cm^gre^sfcan 
sentatives, shall be prescribed in each State by the in terms set 
Legislature thereof; but the Congress may at a'^J wjg^'iatkm 
time by Law make or alter such Regulations, ex- 
cept as to the Places of chusing Senators. 

[§ 2.] The Congress shall assemble at least once 
in every Year, and such Meeting shall be on the 
first Monday in December, unless they shall by Law 
appoint a different Day. 

Section. 5. [§ 1.] Each House shall be the This provi- 

Judge of the Elections, Returns and Qualifications |°^iJgj^^ ^^ 

of its own Members, and a Majority of each shall origin; since 

constitute a Quorum to do Business ; but a smaller 1868 the sub- 
„ , . , T 1 ject has been 

Number may adjourn from day to day, and may be transferred 

authorized to compel the attendance of absent to the Eng- 

Members, in such Manner, and under such Penalties 

as each House may provide. 



248 



FEDERAL CONSTITUTION 



[Ch. XVII 



Articles of 
Confedera- 
tion, Art. V. 



A privilege 
in its most 
ancient form. 
See Bill of 
Rights, Art. 
ix. ; Act of 
Settlement. 



[§ 2.] Each House may determine the Rules of 
its Proceedings, punish its Members for Disorderly 
Behaviour, and, with the Concurrence of two thirds, 
expel a Member. 

[§ 3.] Each House shall keep a Journal of its 
Proceedings, and from time to time publish the 
same, excepting such parts as may in their Judg- 
ment require Secrecy; and the Yeas and Nays of 
the Members of either House on any question shall, 
at the Desire of one fifth of those Present, be 
entered on the Journal. 

[§ 4.] Neither House, during the Session of 
Congress, shall, without the Consent of the other, 
adjourn for more than three days, nor to any other 
Place than that in which the two Houses shall be 
sitting. 

Section. 6. [§ 1.] The Senators and Representa- 
tives shall receive a Compensation for their Ser- 
vices, to be ascertained by Law, and paid out of 
the Treasury of the United States. They shall in 
all Cases, except Treason, Felony and Breach of 
the Peace, be privileged from Arrest during their 
Attendance at the Session of their respective 
Houses, and in going to and returning from tlie 
same ; and for any Speech or Debate in either 
House, they shall not be questioned in any other 
Place. 

[§ 2.] No Senator or Representative shall, dur- 
ing the Time for which he was elected, be appointed 
to any civil Office under the Authority of the United 
States, which shall have been created, or the Emol- 
uments whereof shall have been encreased during 
such time ; and no person holding any Office under 
the United States, shall be a Member of either 
House during his Continuance in Office. 

Section. 7. [§ 1.] All Bills for raising Revenue 
shall originate in the House of Representatives ; 
but the Senate may propose or concur with Amend- 
ments as on other Bills. 



1787] TEXT 249 

[§ 2.] Every Bill which shall have passed the 
House of Representatives and the Senate, shall, 
before it become a Law, be presented to the Presi- 
dent of the United States ; If he approve he shall 
sign it, but if not he shall return it, with his Objec- 
tions to that House in which it shall have originated, 
who shall enter the Objections at large on their 
Joui'nal, and proceed to reconsider it. If after 
such Reconsideration two thirds of that House 
shall agree to pass the Bill, it shall be sent, to- 
gether with the Objections, to the other House, by 
which it shall likewise be reconsidered, and if 
approved by two-thirds of that House, it shall 
become a Law. But in all such Cases the Votes of 
Houses shall be determined by yeas and Nays, 
and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of 
each House respectively. If any Bill shall not be 
returned by the President within ten Days (Sun- 
days excepted) after it shall have been presented to 
him, the same shall be a Law, in like Manner 
as if he had signed it, unless the Congress by their 
Adjournment prevent its Return, in which Case it 
shall not be a Law. 

[§ 3.] Every Order, Resolution, or Vote to ^i^ectly 
which the Concurrence of the Senate and House of the Massa- 
Representatives may be necessary (except on a cliusetts 
question of Adjournment) shall be presented to the of'nso" ^^"^ 
President of the United States ; and before the See Instru- 
same shall take Effect, shall be approved by him, '^'entofGov- 

' ^ ^ J ^ ernment, 

or being disapproved by him, shall be repassed by xxiv. 
two thirds of the Senate and House of Representa- 
tives, according to the Rules and Limitations pre- 
scribed in the Case of a Bill. 

Section. 8. The Congress shall have Power The power 
[§ L] To lay and collect Taxes, Duties, Imposts ^o initiate all 
and Excises, to pay the Debts and provide for the most effect- 
common Defence and general Welfare of the United ual control 
States ; but all Duties, Imposts and Excises shall treSur^y'^and 
be uniform throughout the United States ; of the power 



250 



FEDERAL CONSTITUTION 



[Ch. XVII 



of the ex- 
ecutive. 
Compare 
(l)with Con- 
fed. Art. 
viii. 

This full list 
of congres- 
sional powers 
is but a 
modification 
or adaptation 
of the 

powers given 
to colonial 
legislatures 
and English 
Parliament 
dating back 
to Witenage- 
mot. 

For example: 
note Magna 
Cliarta, Art. 

XXXV. 



[§ 2.] To borrow Money on the credit of the 
United States; 

[§ 3.] To regulate Commerce with foreign 
Nations, and among the several States, and with 
the Indian Tribes ; 

[§ 4.] To establish an uniform Rule of Naturali- 
zation, and uniform Laws on the subject of Bank- 
ruptcies throughout the United States ; 

[§ 5.] To coin Money, regulate the Value 
thereof, and of foreign Coin, and fix the Standard 
of Weights and Measures ; 

[§ 6,] To provide for the Punishment of counter- 
feiting the Securities and current Coin of the United 
States ; 

[§ 7.] To establish Post Offices and post Roads; 

[§ 8.] To promote the Progress of Science and 
useful Arts, by securing for limited Times to 
Authors and Inventors the exclusive Right to their 
respective Writings and Discoveries ; 

[§ 9.] To constitute Tribunals inferior to the 
supreme Court ; 

[§ 10.] To define and punish Piracies and 
Felonies committed on the high Seas, and Offences 
against the Law of Nations ; 

[§ 11.] To declare War, grant Letters of 
Marque and Reprisal, and make Rules concerning 
Captures on Land and Water ; 

[§ 12.] To raise and support Armies, but no 
Appropriation of Money to that Use shall be for a 
longer Term than two Years ; 

[§ 13,] To provide and maintain a Navy; 

[§ 14.] To make Rules for the Government and 
Regulation of the land and naval Forces ; 

[§ 15.] To provide for calling forth the Militia 
to execute the Laws of the Union, suppress Insur- 
rections and repel Invasions ; 

[§ 16.] To provide for organizing, arming, and 
disciplining, the Militia, and for governing such 
Part of them as may be employed in the Service of 



1787] TEXT 251 

the United States, reserving to tlie States respec- 
tively, the Appointment of the Officers, and the 
Authority of training the Militia according to the 
discipline prescribed by Congress ; 

[§ 17.] To exercise exclusive Legislation in all 
Cases whatsoever, over such District (not exceed- 
ing ten Miles square) as may, by Cession of partic- 
ular States, and the Acceptance of Congress, 
become the Seat of the Government of the United 
States, and to exercise like Authority over all 
Places purchased by the Consent of the Legislature 
of the State in which the same shall be, for the 
Erection of Forts, Magazines, Arsenals, dock- 
Yards, and other needf ul*Buildings ; — And 

[§ 18.] To make all Laws which shall be neces- ^pj^jg 
sary and proper for carrying into Execution the clause later 
foregoing Powers, and all other Powers vested by pedSs and 
this Constitution in the Government of the United Kepublicans. 
States, or in any Department or Officer thereof. 

Section. 9. [§ 1.] CThe Migration or Importa- Third com- 

tion of such Persons as an}^ of the States now i^sT^^^im- 

existing shall think proper to admit, shall not be portant be- 

prohibited by the Congress prior to the Year one ^'^^^^ ^^^ 
^ •' '^ / . , , ^ vote of the 

thousand eight hundred and eight, but a lax or Southern 

duty may be imposed on such Importation, not States was 

exceeding ten dollars for each Person.] 

[§ 2.] The Privilege of the Writ of Habeas See Magna 

Corpus shall not be suspended, unless when in Charta, Art. 

Cases of Rebellion or Invasion the public Safety 

may require it. 

r§ 3.1 No Bill of Attainder or ex post facto ^liese 
^ ^ ., , -, clauses ex- 

Law shall be passed, tended by the 

[§ 4.] No Capitation, or other direct. Tax shall first eight 
be laid, unless in Proportion to the Census or 
Enumeration herein before directed to be taken. 

[§ 5.] No Tax or Duty shall be laid on Articles 
exported from any State. 

[§ 6.] No Preference shall be given by any 
Regulation of Commerce or Revenue to the Ports of 



252 FEDERAL CONSTITUTION [Ch. XVII 

The appro- one State over those of another : nor shall Vessels 

pnation of bound to, or from, one State, be oblisfed to enter, 

supplies -r^ • . 

(1353) and clear, or pay Duties m another. 

auditing ac- [§ 7.] No Money shall be drawn from the Trea- 

are here com- ^"^y? ^^^ ^^ Consequence of Appropriations made 

bined. by Law ; and a regular Statement and Account of 

the Receipts and Expenditures of all public Money 

shall be published from time to time. 

[§ 8.] No Title of Nobility shall be granted by 
the United States : And no Person holding any 
Office of Profit or Trust under them, shall, without 
the Consent of the Congress, accept of any present, 
Emolument, Office, or Title, of any kind whatever, 
from any King, Prince, or foreign State. 

Section. 10. [§ 1.] No State shall enter into any 
Treaty, Alliance, or Confederation ; grant Letters of 
Comp. with Marque and Reprisal ; coin Money ; emit Bills of 
Arts, of Con- Credit ; make any Thing but gold and silver Coin 
a Tender in payment of Debts ; pass any Bill of 
Attainder, ex post facto Law, or Law impairing 
the Obligation of Contracts, or grant any Title of 
Nobility. 

[§ 2.] No State shall, without the Consent of the 
Congress, la}' any Imposts or Duties on Imports or 
Exports, except what may be absolutely necessary 
for executing its inspection Laws : and the net Pro- 
duce of all Duties and Imposts, laid by any State 
on Imports or Exports, shall be for the Use of the 
Treasury of the United States ; and all such Laws 
shall be subject to the Revision and Controul of the 
Congress. 

[§ 3.] No State shall, without the Consent of 
Congress, lay any Duty of Tonnage, keep Troops, 
or Ships of AVar in time of Peace, enter into any 
Agreement or Compact with another State, or with 
a foreign Power, or engage in War, unless actually 
invaded, or in such imminent Danger as will not 
admit of delay. 



1787] TEXT 253 

ARTICLE. II. 

Section, i. [§ 1.] The executive Power shall be JohnQuincy 
vested in a President of the United States of Amer- ^^^™^' 
ica. He shall hold his Office during the Term of powers of 
four Years, and, together with the Vice President, ^lie execu- 
chosen for the same Term, be elected, as follows ment expli- 

[§ 2.] Each State shall appoint, in such Manner citly and em- 

as the Legislature thereof may direct, a Number of poncentrated 

Electors, equal to the whole Number of Senators in one person 

and Representatives to which the State may be ^^'® ^^^"-J 

. , , . ^ „ more exten- 

entitled in the Congress : but no Senator or Repre- sive and 

sentative, or Person holding an Office of Trust or complicated 
Profit under the United States, shall be appointed t,he Leo-isla- 
an Elector. ture." 

CThe Electors shall meet in their respective 
States, and vote by Ballot for two Persons, of 
whom one at least shall not be an Inhabitant of the 
same State with themselves. And they shall make 
a List of all the Persons voted for, and of the Num- 
ber of Votes for each ; which List they shall sign 
and certifj', and transmit sealed to the Seat of the 
Government of the United States, directed to the 
President of the Senate. The President of the Sen- 
ate shall, in the Presence of the Senate and House 
of Representatives, open all the Certificates, and 
the Votes shall then be counted. The Person hav- The failure 

ing the greatest Number of Votes shall be the Pres- \^ specify 
^ <=> l)y whom 

ident, if such Number be a Majority of the whole they should 
Number of Electors appointed ; and if there be he counted 
more than one who have such Majority, and have crisis of 1877. 
an equal Number of Votes, then the House of Rep- 
resentatives shall immediately chuse by Ballot one 
of them for President; and if no Person have a 
Majority, then from the five highest on the List the 
said House shall in like Manner chuse the President. 
But in chusing the President, the Votes shall be 
taken by States, the Representation from each State 
having one Vote ; A quorum for this Purpose shall 



254 FEDERAL CONSTITUTION [Ch. XVII 

consist of a Member or Members from two thirds 
See Amend- of the States, and a Majority of all the States shall 
ment xii. ]^,g necessary to a Choice. In every Case, after 
the Choice of the President, the Person having the 
greatest Number of Votes of the Electors shall be 
the Vice President. But if there should remain two 
or more who have equal Votes, the Senate shall 
chuse from them by Ballot the Vice President.] 

[§ 3.] The Congress may determine the Time of 
chusing the Electors, and the Day on which they 
shall give their Votes ; which Day shall be the same 
throughout the United States. 

[§4.] No Person except a natural born Citizen, 
or a Citizen of the United States at the time of the 
Adoption of this Constitution, shall be eligible to 
the Office of President ; neither shall any Person be 
eligible to that Office who shall not have attained to 
the Age of thirty- five Years, and been fourteen 
Years a Resident within the United States. 

[§ 5.] In Case of the Removal of the President 
from Office, or of his Death, Resignation or Inabil- 
ity to discharge the Powers and Duties of the said 
Office, the Same shall devolve on the Vice President, 
and the Congress may by Law provide for the Case 
of Removal, Death, Resignation, or Inability, both 
of the President and Vice President, declaring what 
Officer shall then act as President, and such Officer 
shall act accordingly, until the Disability be re- 
moved, or a President shall be elected. 

[§ 6.] The President shall, at stated Times, re- 
ceive for his Services, a Compensation, which shall 
neither be encreased nor diminished during the 
Period for which he shall have been elected, and he 
shall not receive within that Period any other Emol- 
ument from the United States, or any of them. 

[§ 7.] Before he enter on the Execution of his 
Office, he shall take the following Oath or affirma- 
tion : — 

" I do solemnly swear (or affirm) that I will faith- 



1787] TEXT 255 

fully execute the Office of President of the United 
States, and will to the best of my Ability, preserve, 
protect, and defend the Constitution of the United 
States." 

Section. 2. [§ 1.] The President shall be Com- The war- 
mander in Chief of the Army and Navy of the "^^^y. °^ ^^^ 
United States, and of the Militia of the several may involve 
States, when called into the actual Service of the the country 
United States ; he may require the Opinion, in out consent' 
writing, of the principal Officer in each of the ex- of Congress, 
ecutive Departments, upon any Subject relating to w^^^^^^^'^ 
the Duties of their respective Offices, and he shall 
have Power to grant Reprieves and Pardons for 
Offences against the United States, except in Cases 
of Impeachment. 

[§ 2.] He shall have Power, by and with the 
Advice and Consent of the Senate, to make Treaties, This power 
provided two thirds of the Senators present concur ; ^^^^ ^^ck. to 
and he shall nominate, and by and with the Advice the Teutonic 
and Consent of the Senate, shall appoint Ambassa- ti'ibes when 

tllG CVH- 

dors, other public Ministers and Consuls, Judges of jQg" led 
the supreme Court, and all other Officers of the tribes in 
United States, whose Appointments are not herein ^^^^ *^ ^*^' 
otherwise provided for, and which shall be estab- 
lished by Law : but the Congress may by Law vest 
the Appointment of such inferior Officers, as they 
think proper, in the President alone, in the Courts 
of Law, or in the Heads of Departments. 

[§ 3.] The President shall have Power to fill up 
all Vacancies that may happen during the Recess of 
the Senate, by granting Commissions which shall 
expire at the End of their next Session. 

Section. 3. He shall from time to time give to The Presi- 
the Congress Information of the State of the Union, gf^g is^kl'n 
and recommend to their Consideration such Meas- to'the pro- 
ures as he shall judge necessary and expedient; he ^^dure of 
may, on extraordinary Occasions, convene both municating 
Houses, or either of them, and in Case of Disagree- ^^*^ ^^^' 
ment between them, with Respect to the Time of Bryce says 



256 FEDERAL CONSTITUTION [Ch. XVII 

" The mes- Adjournment, he may adjourn them to such Time 
dtfcusses^the ^^ ^® ^^^^^ think proper ; he shall receive Ambassa- 
leading ques- dors and other public Ministers ; he shall take Care 
tion of the ^^^^^ q^^ Laws be faithfully executed, and shall 
But as no ' Commission all the Officers of the United States, 
one of his SECTION. 4. The President, Vice President and 

in either ^,11 civil Officers of the United States, shall be 
House to ex- removed from Office on Impeachment for, and Con- 
defend tliem miction of, Treason, Bribery, or other high Crimes 
the message and Misdemeanors, 
is a shot in 



the air with- 
out practical 
result." 



ARTICLE. III. 



No federa- Section. 1. The judicial Power of the United 

tion had ever States, shall be vested in one supreme Court, and. 
ful nationai'^ ^"^ ^^*^^ inferior Courts as the Congress may from 
Court. time to time ordain and establish. The Judges, 

^?™P^''^ both of the supreme and inferior Courts, shall hold 
Confed. xx. their Offices during good Behaviour, and shall, at 
Sect. 2. stated Times, receive for their Services, a Compen- 

sation, which shall not be diminished during their 
Continuance in Office. 

Section. 2. [§ 1.] The judicial Power shall ex- 
tend to all Cases, in Law and Equity, arising under 
this Constitution, the Laws of the United States, 
and Treaties made, or which shall be made, under 
their Authority ; — to all Cases affecting Ambassa- 
dors, other public Ministers and Consuls ; — to all 
Cases of admiralty and maritime Jurisdiction ; — to 
Controversies to which the United States shall be a 
Party ; — to Controversies between two or more 
States ; — between a State and Citizens of another 
State ; — between Citizens of different States, — 
between Citizens of the same State claiming Lands 
under Grants of different States, and between a 
State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 

[§ 2.] In all Cases affecting Ambassadors, other 



1787] TEXT 257 

public Ministers and Consuls, and those in wliieh a 
State shall be Party, the supreme Court shall have 
original Jurisdiction. In all the other Cases before 
mentioned, the supreme Court shall have appellate 
Jurisdiction, both as to Law and Fact, with such 
Exceptions, and under such Regulations as the Con- 
gress shall make. 

[§ 3.] The Trial of all Crimes, except in Cases Limited by 
of Impeachment, shall be by Jury ; and such Trial ^^^^ Amend- 
shall be held in the State where the said Crimes 
shall have been committed ; but when not committed 
within any State, the Trial shall be at such Place or 
Places as the Congress may by Law have directed. 

SECTioisr. 3. [§ 1.] Treason against the United 
States, shall consist only in levying War against 
them, or in adhering to their Enemies, giving them 
Aid and Comfort. No Person shall be convicted of 
Treason unless on the Testimony of two Witnesses 
to the same overt Act, or on Confession in open 
Court. 

[§ 2.] The Congress shall have Power to declare 
the Punishment of Treason, but no Attainder of 
Treason shall work Corruption of Blood, or Forfei- 
ture except during the Life of the Person attainted. 



ARTICLE. IV. 

Section. 1. .Full Faith and Credit shall be given 
in each State to the public Acts, Records, and judi- 
cial Proceedings of every other State. And the 
Congress may by general Laws prescribe the Man- 
ner in which such Acts, Records and Proceedings 
shall be proved, and the Effect thereof. 

Section 2. [§ 1.] The Citizens of each State 
shall be entitled to all Privileges and Immunities of 
Citizens in the several States. 

[§ 2.] A Person charged in any State with ^i^j-j^g-g^j 
Treason, Felony, or other Crime, who shall flee text from 

17 



258 



FEDERAL CONSTITUTION 



[Ch. XVII 



Articles of 
Confedera- 
tion, iv. ; 
extended by 
14tli Amend- 
ment. 

A cause of 
violent con- 
troversy 
from 1831 to 
1864; super- 
seded by lotli 
Amendment. 



Kentucky, 
Vermont, 
Maine, West 
Virginia so 
constituted 
by consent. 



Federal 
forces have 
been repeat- 
edly called in 
to repress in- 
surrections, 
and also 
at times of 
strikes and 
riots. 



from Justice, and be found in another State, shall 
on Demand of the executive Authority of the 
State from which he fled, be delivered up, to be 
removed to the State having Jurisdiction of the 
Crime. 

[§ 3.] CNo Person held to Service or Labour in 
one State, under the Laws thereof, escaping into 
another, shall, in Consequence of any Law or Reg- 
ulation therein, be discharged from such Service or 
Labour, but shall be delivered up on Claim of the 
Party to whom such Service or Labour may be 
duej 

Section 3. [§ 1.] New States may be admitted 
by the Congress into this Union ; but no new State 
shall be formed or erected within the Jurisdiction of 
any other State ; nor any State be formed by the 
Junction of two or more States, or Parts of States, 
without the Consent of the Legislatures of the 
States concerned as well as of the Congress. 

[§ 2.] The Congress shall have Power to dispose 
of and make all needful Rules and Regulations re- 
specting the Territory or other Property belonging 
to the United States ; and nothing in this Constitu- 
tion shall be so construed as to Prejudice any 
Claims of the United States, or of any particular 
State. 

Section 4. The United States shall guarantee 
to every State in this Union a Republican Form of 
Government, and shall protect each of them against 
Livasion ; and on Application of the Legislature, or 
of the Executive (when the Legislature cannot be 
convened) against domestic Violence. 

ARTICLE. V. 

The Congress, whenever two thirds of both 
Houses shall deem it necessary, shall propose 
Amendments to this Constitution, or, on the Ap- 
plication of the Legislatures of two thirds of the 



1787] TEXT 259 

several States, shall call a Convention for proposing 
Amendments, which, in either Case, shall be valid 
to all Intents and Purposes, as Part of this Consti- This method 
tutiou, when ratified by the Legislatures of three of amending 
fourths of the several States, or by Conventions in stitution 
three fourths thereof, as the one or the other Mode has proved 
of Ratification may be proposed by the Congress; Sm^f ou™^' 
Provided [[that no Amendment which may be made of about 1700 
prior to the Year One thousand eight hundred and Proposed 
eight shall in any Manner affect the first and fourth have been 
Clauses in the Ninth Section of the first Article ; ratified, 
and] that no State, without its Consent, shall be 
deprived of its equal Suffrage in the Senate. 



ARTICLE. VI. 

[§ 1.] All Debts contracted and Engagements 
entered into, before the Adoption of this Constitu- 
tion, shall be as valid against the United States 
under this Constitution, as under the Confed- See 14th 
eration. Amendment. 

[§ 2.] This Constitution, and the Laws of the 
United States which shall be made in Pursuance 
thereof ; and all Treaties made, or which shall be 
made, under the Authority of the L^nited States, 
shall be the supreme Law of the Land ; and the a splendid 
Judges in every State shall be bound thereby, any and powerful 
Thing in the Constitution or Laws of any State to ^ ^^^^' 
the Contrary notwithstanding. 

[§ 3.] The Senators and Representatives before 
mentioned, and the Members of the several State 
Legislatures, and all executive and judicial Officers, 
both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support 
this Constitution ; but no religious Test shall ever 
be required as a Qualification to any Office or public 
Trust under the United States. 



260 



FEDERAL CONSTITUTION 



[Ch. XVII 



Technically 
a breach of 
the previous 
Articles of 
Confedera- 
tion. 



ARTICLE. VII. 

The Ratification of the Conventions of nine States, 
shall be sufficient for the Establishment of this Con- 
stitution between the States so ratifying the Same. 

Done in Convention by the Unanimous 
[Note of the Consent of the States present the Seven- 
drauglitsman as to teentli Day of September in the Year of 
interlineations i n our Lord one thousand seven hundred and 
the text of the man- Eighty seven and of the Independence of 
useript.] the United States of America the Twelfth 

Attest In Witness whereof We have hereunto 

WilliamJackson. subscribed our names. 

Secretary. Go WASHINGTON — 

Presidt and deputy from Virginia. 



Delaware. 



( GrEO : Read 
I Gunning Bedford jun 
^ John Dickinson 
I Richard B as sett 
[^Jaco Broom 

JSfew Hampshire. 

f John Langdon ) 
( Nicholas Gilman ) 

Massachusetts. 

J Nathaniel Gorham 
I Rupus King 

Maryland. 

r James McHenry 
Dan of St. Thos. Jen- 



North Carolina. 

( Wm. Blount 

< Richd. Dobbs Spaight 

(Hu Williamson 



South Carolina 

f J. RUTLEDGE 

I Charles Cotesworth 

\ PiNCKNEY 

I Charles Pinckney 
[Pierce Butler 



IPER 



I 

[Danl Carroll 

Virginia. 

( John Blair — 

1 James Madison Jr. 



Georgia. 

( William Few 
(Abr Baldwin 

Connecticut. 

(Wm. Saml. Johnson 
i Roger Sherman 

Neto York. 
Alexander Hamilton 



1789-1791] TEXT 

New Jersey. Pennsylvania ^ 



261 



r WiL : Livingston 
J David Brearley 
I Wm : Paterson . 
[ JoNA : Dayton 



B Franklin 
Thomas Mipflin 
EoBT. Morris 

, Geo. Clymer 

« Thos. Fitz Simons 
Jared Ingersoll 
James Wilson. 
Gouv Morris 



AMENDMENTS. 

[ARTICLE I.] 

Congress shall make no law i-especting an estab- 
lishment of religion, or prohibiting the free exercise 
thereof ; or abridging the freedom of speech, or of 
the press ; or the right of the people peaceably to 
assemble, and to petition the Government for a re- The first ten 

dress of grievances. amendments 

were adopted 
^.^^^^^^ -^^ n at one time 

[ARTICLE II.] (Sept. 25, 

1 . -, T.-.T,. 1 • ^ XI 1789): and 

A well regulated Militia, being necessary to the declared in 

security of a free State, the right of the people to force Dec. 15, 
keep and bear Arms, shall not be infringed. satisfied the^ 

popular de- 
[ARTICLE III.] mandfora 

*- ^ Bill of 

No Soldier shall, in time of peace be quartered Eights, See 

in any house, without the consent of the Owner, nor p?^i^^^° 
in time of war, but in a manner to be prescribed by xi.'^ 
law. 

[ARTICLE IV.] 

The right of the people to be secure in their per- 
sons, houses, papers, and effects, against unreason- 
able searches and seizures, shall not be violated, 
and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and partic- 
ularly describing the place to be searched, and the 
persons or things to be seized. 



262 



FEDERAL CONSTITUTION 



[Ch. XVII 



Amendments 
V. to xi. re- 
state English 
Common 
Law, and 
Magna 
Charta. 



[ARTICLE v.] 

No person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a present- 
ment or indictment of a Grand Jury, except in 
cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or 
public danger ; nor shall any person be subject for 
the same offence to be twice put in jeopardy of life 
or limb; nor shall be compelled in any criminal 
case to be a witness against himself, nor be deprived 
of life, liberty, or property, without due process of 
law ; nor shall private property be taken for public 
use, without just compensation. 

[ARTICLE VL] 

In all criminal prosecutions the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury of the State and disti'ict wherein the 
crime shall have been committed, which district 
shall have been previously ascertained by law, and 
to be informed of the nature and cause of the accu- 
sation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining wit- 
nesses in his favour, and to have the Assistance of 
Counsel for his defence. 

[ARTICLE VII.] 

In suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved, and no fact tried 
by a jury shall be otherwise re-examined in any 
Court of the United States, than according to the 
rules of the common law. 

[ARTICLE VIII.] 

Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments 
inflicted. 



1789-1791] TEXT 263 

[ARTICLE IX.] 

The enumeration in the Constitution, of certain 
rights, shall not be construed to deny or disparage 
others retained by the people. 

[ARTICLE X.] 

The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively or to the 
people. 

[ARTICLE XL] 

The Judicial power of the United States shall not Proposed 
be construed to extend to any suit in law or equity, 2794 ^'g. 
commenced or prosecuted against one of the United dared in 
States by Citizens of another State, or by Citizens !2gn® '^^^' ^' 
or Subjects of any Foreign State. 

[ARTICLE XII.] 

The Electors shall meet in their respective states, Proposed 
and vote by ballot for President and Vice-President, T^gciai^'d n 
one of whom, at least, shall not be an inhabitant of force Sept. 
the same state with themselves ; they shall name in ^^' ■'^^^'^• 
their ballots the person voted for as President, and rp^ prevent 
in distinct ballots the person voted for as Vice- ties and 
President, and they shall make distinct lists of all dead-locks, 
persons voted for as President, and of all persons 
voted for as Vice-President, and of the number of 
votes for each, which lists they shall sign and cer- 
tify, and transmit sealed to the seat of the govern- 
ment of the United States, directed to the President 
of the Senate ; — The President of the Senate shall, 
in the presence of the Senate and House of Repre- 
sentatives, open all the certificates and the votes 
shall then be counted ; — The person having the 
greatest number of votes for President, shall be 
the President, if such number be a majority of the 



264 



FEDERAL CONSTITUTION 



[Ch. XVII 



In the origi- 
nal manu- 
scripts these 
twelve 

Amendments 
have no 
numbers. 
Amendments 
xiii.-xv. 
appear in 
Ch. xxi. 
below. 



whole number of Electors appointed ; and if no 
person have such majority, then from the persons 
having the highest numbers not exceeding three on 
the list of those voted for as President, the House 
of Representatives shall choose immediately, by 
ballot, the president. But in choosing the Presi- 
dent, the votes shall be taken by states, the repre- 
sentation from each state having one vote ; a 
quorum for this purpose shall consist of a member 
or members from two-thirds of the states, and a 
majority of all the states shall be necessaiy to a 
choice. And if the House of Representatives shall 
not choose a President whenever the right of choice 
shall devolve upon them, before the fourth day of 
March next following, then tlie Vice-President shall 
act as President, as in the case of the death or other 
constitutional disability of the President. — The per- 
son having the greatest number of votes as Vice- 
President, shall be the Vice-President, if such number 
be a majority of the whole number of Electors ap- 
pointed, and if no person have a majority, then 
from the two highest numbers on the list, the Senate 
shall choose the Vice-President; a quoi'um for the 
purpose shall consist of two-thirds of the whole 
number of Senators, and a majority of the whole 
number shall be necessary to a choice. But no 
person constitutionally ineligible to the office of 
President shall be eligible to that of Vice-President 
of the United States. 

CONTEMPORARY EXPOSITION 



FRANKIilN (1787) 

Monday, September 17. — In Convention. — The engrossed 
Constitution being read. Doctor Franklin rose with a speech in 
his hand, which he had reduced to writing for his own conve- 
nience, and which Mr. Wilson read in the words following : — 

" Mr. President: I confess that there are several parts of 
this Constitution which I do not at present approve, but I am 



1787] CONTEMPORARY EXPOSITION 265 

not sure I shall never approve them. For having lived long, 
I have experienced many instances of being obliged by better 
information, or fuller consideration, to change opinions even on 
important subjects which I once thought right, but found to be 
otherwise. It is therefore that, the older I grow, the more apt 
I am to doubt my own judgment, and to pay more respect to 
the judgment of others. Most men, indeed, as well as most 
sects in religion, think themselves in possession of all truth, 
and that wherever others differ from them it is so far error. 
Steele, a Protestant, in a dedication, tells the Pope, that the only 
difference between our churches, in their opinions of the cer- 
tainty of their doctrines, is, ' the Church of Rome is infallible, 
and the Church of England is never in the wrong.' But though 
many private persons think almost as highly of their own infal- 
libility as of that of their sect, few express it so naturally as a 
certain French ladj^ who, in a dispute with her sister, said, ' I 
don't know how it happens, sister, but I meet with nobody but 
myself that is always in the right — il n'y a que moi a toujours 
raison. ' 

"In these sentiments, sir, I agree to this Constitution, with 
all its faults, if they are such ; because I think a General Grov- 
ernment necessary for us, and there is no form of government 
but what may be a blessing to the people if well administered ; 
and believe further, that this is likely to be well administered 
for a course of years, and can only end in despotism, as other 
forms have done before it, when the people shall become so cor- 
rupted as to need despotic government, being incapable of any 
other. I doubt, too, whether any other Convention we can ob- 
tain may be able to make a better Constitution, for when you 
assemble a number of men to have the advantage of their joint 
wisdom, you inevitably assemble with those men all their preju- 
dices, their passions, their errors of opinion, their local inter- 
ests, and their selfish views. From such an assembly can a 
perfect production be expected? It therefore astonishes me, 
sii', to find this system approaching so near to perfection as it 
does ; and I think it will astonish our enemies, who are waiting 
with confidence to hear that our councils are confounded, like 
those of the builders of Babel ; and that our States are on the 
point of separation, only to meet hereafter for the purpose of 



266 FEDERAL CONSTITUTION [Ch. XVII 

cutting one another's throats. Thus I consent, sir, to this Con- 
stitution, because I expect no better, and because I am not sure 
that it is not the best. The opinions I have had of its errors 
I sacrifice to the public good. I have never whispered a syl- 
lable of them abroad. Within these walls they were born 
and here they shall die. If every one of us, in returning to 
our constituents, were to report the objections he has had to it, 
and endeavour to gain partizans in support of them, we might 
prevent its being generally received, and thereby lose all the 
salutary effects and great advantages resulting naturally in our 
favour among foreign nations as well as among ourselves, from 
our real or apparent unanimity. Much of the strength and 
efficiency of any government, in procuring and securing happi- 
ness to the people, depends on opinion — on the general opinion 
of the goodness of the government as well as of the wisdom 
and integrity of its governors. I hope, therefore, that for our 
own sakes, as a part of the people, and for the sake of pos- 
terity, we shall act heartily and unanimously in recommending 
this Constitution (if approved by Congress and confirmed by 
the Conventions) wherever our influence may extend, and turn 
our future thoughts and endeavours to the means of having it 
well administered. 

" On the whole, sir, I cannot help expressing a wish that every 
member of the Convention, who may still have objections to it, 
would, with me, on this occasion doubt a little of his own 
infallibility, and, to make manifest our unanimity, put his 
name to this instrument." 

He then moved that the Constitution be signed by the mem- 
bers, and offered the following as a convenient form, viz. ; 
*' Done in Convention by the unanimous consent of the States 
present, the seventeenth of September, &c. In '^\atness where- 
of we have hereunto subscribed our names." This ambiguous 
form had been drawn up by Mr. Gouverneur Morris, in order to 
gain the dissenting members, and put into the hands of Doctor 
Pranklin that it might have the better chance of success. . . . 

The Constitution being signed by all the members except Mr. 
Randolph, Mr. Mason and Mr. Gerry, who declined giving it 
the sanction of their names, the Convention dissolved itself by 
an adjournment sine die. 



1787] CONTEMPORARY EXPOSITION 267 

Whilst the last members were signing, Doctor Franklin, look- 
ing towards the President's chair, at the back of which a rising 
sun happened to be painted, observed to a few members near 
him that painters had found it difficult to distinguish, in their 
art, a rising, from a setting, sun. I have, said he, often 
and often, in the course of the session, and the vicissitudes of 
my hopes and fears as to its issue, looked at that behind the 
President, without being able to tell whether it was rising or 
setting ; but now, at length, I have the happiness to know, that 
it is a rising, and not a setting, sun. 

Benjamin Franklin in Henry D. Gilpin's Madison Papers. III. 1596-1624. 
MASON (1787). 

There is no declaration of rights ... In the House of 
Representatives there is not the substance, but the shadow 
only of representation. , . . The Senate have the power of 
altering all money-bills, and of originating appropriations of 
money . . . although they are not the representatives of the 
people. ... 

The judiciary of the United States is so constructed and 
extended as to absorb and destroy the judiciaries of the several 
States. . . . The President of the United States has no con- 
stitutional council ; he will therefore be unsupported by proper 
information and advice. . . . 

This government will commence in a moderate aristocracy ; 
it is at present impossible to foresee whether it will in its 
operation produce a monarchy or a corrupt oppressive aris- 
tocracy ; it will most probably vibrate some years between the 
two, and then terminate in the one or the other. 

George Mason, Address to the Citizens of Virginia, in P. L. Ford, Pam- 
phlets on the Constitution. 329, 332. 

THE FEDERALIST (3787) 

If the new Constitution be examined with accuracy and can- 
dour, it will be found that the change which it proposes consists 
much less in the addition of New Powers to the Union, than 
in the invigoration of its Original Powers. The regulation of 
commerce, it is true, is a new power; but that seems to be 



268 FEDERAL CONSTITUTION [Ch. XVII 

an addition which few oppose, and from which no apprehen- 
sions are entertained. The powers relating to war and peace, 
armies and fleets, treaties and finances, with the other more 
considerable powers, are all vested in the existing Congress by 
the articles of Confederation. The proposed change does not 
enlarge these powers ; it only substitutes a more effectual mode 
of administrating them. The change relating to taxation may 
be regarded as the most important; and yet the present Con- 
gress have as complete authority to Require of the States 
indefinite supplies of money for the common defence and 
general welfare, as the future congress will have to require 
them of individual citizens ; and the latter will be no more 
bound than the States themselves have been, to pay the quotas 
respectively taxed on them. Had the States complied punc- 
tually with the articles of Confederation, or could their com- 
pliance have been enforced by as peaceable means as may be 
used with success towards single persons, our past experience 
is very far from countenancing an opinion, that the State gov- 
ernments would have lost their constitutional powers, and have 
gradually undergone an entire consolidation. To maintain that 
such an event would have ensued, would be to say at once, that 
the existence of the State governments is incompatible with 
any system whatever that accomplishes the essential purposes 
of the Union. 

Alexander Hamilton in The Federalist. No. xlv. 291. 

HAMILTON (1787) 

The new Constitution has in favour of its success these cir- 
cumstances. A very great weight of influence of the persons 
who framed it, particularly in the universal popularity of 
General Washington. The good- will of the commercial in- 
terest throughout the States, which will give all its efforts to 
the establishment of a government capable of regulating, pro- 
tecting, and extending the commerce of the Union. The 
good -will of most men of property in the several States, who 
wish a government of the Union able to protect them against 
domestic violence, and the depredations which the democratic 
spirit is apt to make on property, and who are besides anxious 



1787] CONTEMPORARY EXPOSITION 269 

for the respectability of tlie nation. The hopes of the credi- 
tors of the United States, that a general government possess- 
ing the means of doing it, will pay the debt of the Union. A 
strong belief in the people at large of the insufficiency of the 
present Confederation to preserve the existence of the Union, 
and of the necessity of the Union to their safety and pros- 
perity; of course, a strong desire of a change, and a pre- 
disposition to receive well the propositions of the convention. 

Against its success is to be put the dissent of two or three 
important men in the convention, who will think their charac- 
ters pledged to defeat the plan ; the influence of many incon- 
siderable men in possession of considerable offices under the 
State governments, who will fear a diminution of their conse- 
quence, power, and emolument, by the establishment of the 
general government, and who can hope for nothing there ; the 
influence of some considerable men in office, possessed of talents 
and popularity, who, partly from the same motives, and partly 
from a desire of playing a part in a convulsion for their own 
aggrandizement, will oppose the quiet adoption of the new 
government (some considerable men out of office, from motives 
of ambition, may be disposed to act the same part). Add to 
these causes the disinclination of the people to taxes, and of 
course to a strong government ; the opposition of all men much 
in debt, who will not wish to see a government established, one 
object of which is to restrain the means of cheating creditors ; 
the democratical jealousy of the people, which may be alarmed 
at the appearance of institutions that may seem calculated to 
place the power of the community in few hands, and to raise 
a few individuals to stations of great pre-eminence ; and the 
influence of some foreign powers, who, from different motives, 
will not wish to see an energetic government established 
throughout the States. 

Alexander Hamilton, Works. I. 400-402. 

WASHINGTON (17S7) 

To Patrick Henry. 

Mount Vernon, 24, September, 1787. 
Dear Sir, — In the first moment after my return, I take 
the liberty of sending you a copy of the constitution, which 



270 FEDERAL CONSTITUTION [Ch. XVH 

the federal convention has submitted to the people of these 
States. I accompany it with no observations. Your own 
judgment will at once discover the good and the exceptionable 
parts of it ; and your experience of the difficulties, which 
have ever arisen when attempts have been made to reconcile 
such variety of interests and local prejudices, as pervade the 
several States, will render explanation unnecessary. I wish 
the constitution, which is offered, had been made more per- 
fect ; but I sincerely believe it is the best that could be 
obtained at this time. And, as a constitutional door is 
opened for amendment hereafter, the adoption of it, under 
the present circumstances of the Union, is in my opinion 
desirable. 

From a variety of concurring accounts it appears to me, that 
the political concerns of this country are in a manner suspended 
by a thread, and that the convention has been looked up to, by 
the reflecting part of the community, with a solicitude which is 
hardly to be conceived ; and, if nothing had been agreed on by 
that body, anarchy would soon have ensued, the seeds being 
deeply sown in every soil. 

George Washington, Works. XI. 164, 165. 

WASHINGTON (178S) 

To THE Marquis de Lafayette. 

Mount Vernon, February 7, 1788. 
My Dear Marquis, ... As to my sentiments with re- 
spect to the merits of the new constitution, I will disclose 
them without reserve, (although by passing through the post- 
office they should become known to all the world,) for in truth 
I have nothing to conceal on that subject. It appears to me, 
then, little short of a miracle, that the delegates from so many 
different States, (which States you know are also different from 
each other,) in their manners, circumstances, and prejudices, 
should unite in forming a system of national government, so 
little liable to well-founded objections. Nor am I yet such an 
enthusiastic, partial, or undiscriminating admirer of it, as not 
to perceive it is tinctured with some real (though not radical) 
defects, . , , With regard to the two great points (the pivots 



1788] CONTEMPORARY EXPOSITION 271 

upon which the whole machiue must move) , my creed is simply, 
1st. That the general government is not invested with more 
powers, than are indispensably necessary to perform the func- 
tions of a good government ; and consequently that no objec- 
tion ought to be made against the quantity of power delegated 
to it. 

2dly. That these powers . , . are so distributed among the 
legislative, executive, and judicial branches into which the gen- 
eral government is arranged, that it can never be in danger of 
degenerating into a monarchy, an oligarchy, an aristocracy, or 
any other despotic or oppressive form, so long as there shall 
remain any virtue in the body of the people. . . . 

George Washington, Works. XL 218, 219. 

DICKINSON (1788) 

Some of our fellow -citizens have ventured to predict the 
future of United America, if the system proposed to us, shall 
be adopted. 

Though every branch of the constitution and government is 
to be popular, and guarded by the strongest provisions that 
until this day have occurred to mankind, yet the system will 
end, they say, in the oppressions of a monarchy, or aristocracy 
by the federal servants or some of them. . . . 

The proposed confederation offers to us a system of diversi- 
fied representation in the legislative, executive, and judicial 
departments as essentially necessary to the good government 
of an extensive republican empire. Every argument to recom- 
mend it, receives new force, by contemplating events that must 
take place. The number of states in America will increase. 
If not united to the present, the consequences are evident; if 
united it must be by a plan that will communicate equal liberty 
and assure just protection to them. 

John Dickinson, in P. L. Ford's Pmyiphlets on the Constitution. 195, 204. 

COXE (1788) 

The people will remain, under the proposed constitution, the 
fountain of power and public honour. The President, the Sen- 
ate, and the House of Kepresentatives, will be the channels 



272 FEDERAL CONSTITUTION [Ch. XVn 

through which the stream will flow — but it will flow from the 
people, and from them only. 

Every office, religious, civil and military will be either their 
immediate gift or it will come from them through the hands of 
their servants. 

And this, as observed before, will be guaranteed to them 
under the state constitution which they respectively approve ; 
for they cannot be royal forms, cannot be aristocratical, but 
must be republican. . . . 

There is no spirit of arrogance in the new federal constitu- 
tion. It addresses you with becoming modesty, admitting that 
it may contain errors. Let us give it a trial ; and when expe- 
rience has taught its mistakes, the people, whom it preserves 
absolutely all powerful, can reform and amend them. That I 
may be perfectly understood, I will acknowledge its acceptance 
by all the states, without delay is the second wish of my heart. 
The first is, that our country may be virtuous and free. 

Tench Coxe, in P. L. Ford's Pamphlets on the Constitution. 147, 153, 154. 

JEFFERSON (1821) 

This Convention met at Philadelphia on the 25th of May, '87. 
It sat with closed doors, and kept all its proceedings secret, until 
its dissolution on the 17th of September, when the results of its 
labours were published all together. I received a copy, earl}^ in 
November, and read and contemplated its provisions with great 
satisfaction. As not a member of the Convention, however, nor 
probably a single citizen of the Union, had approved it in all its 
parts, so I, too, found articles which I thought objectionable. 
The absence of express declarations ensuring freedom of re- 
ligion, freedom of the press, freedom of the person under the 
uninterrupted protection of the Habeas corpus, and trial by 
jury in Civil as well as in Criminal cases, excited my jealousy; 
and the re-eligibility of the President for life, I quite disap- 
proved. I expressed freely, in letters to my friends, and most 
particularly to Mr. Madison and General Washington, my ap- 
probations and objections. How the good should be secured 
and the ill brought to rights was the difficulty. To refer it 
back to a new Convention might endanger the loss of the 
whole. My first idea was, that the nine States first acting, 



1788-1833] CRITICAL COMMENT 273 

should accept it unconditionally, and thus secure what in it 
was good, and that the four last should accept on the previous 
condition, that certain amendments should be agreed to ; but a 
better course was devised, of accepting the whole, and trusting 
that the good sense and honest intentions of our citizens, would 
make the alterations which should be deemed necessary. 

Thomas Jefferson, Works. I. 79. 



CRITICAL COMMENT 

WEBSTER (1833) 

The Constitution of the United States, founded in or on the 
consent of the people, may be said to rest on compact or con- 
sent ; but it is not itself the compact, but its result. When the 
people agree to erect a government, and actually erect it, the 
thing is done, and the agreement is at an end. The compact 
is executed, and the end designed by it attained. Henceforth, 
the fruit of the agreement exists, but the agreement itself is 
merged in its own accomplishment ; since there can be no longer 
a subsisting agreement or compact to form a constitution or 
government, after that constitution or government has been 
actually formed and established. . . . 

The Constitution, Sir, regards itself as perpetual and immor- 
tal. It seeks to establish a union among the people of the 
States, which shall last through all time. . . . It is the associ- 
ation of the people, under a constitution of government, uniting 
their power, joining together their highest interests, cementing 
their present enjoyments, and blending, in one indivisible mass, 
all their hopes for the future. Whatsoever is steadfast in just 
political principles ; whatsoever is permanent in the structure 
of human society ; whatsoever there is which can derive an 
enduring character from being founded on deep-laid principles 
of constitutional liberty, and on the broad foundations of the 
public will, — all these unite to entitle this instrument to be 
regarded as a permanent constitution of government. 

Daniel Webster, Works. III. 468, 478. 
18 



274 FEDERAL CONSTITUTION [Ch. XVII 

STOET (1833) 

In oar future commentaries upon the constitution we shall 
treat it, then, as it is denominated in the instrument itself, as 
a constitution of government, ordained and established by the 
people of the United States for themselves and their posterity. 
They have declared it the supreme law of the land. They have 
made it a limited government. They have defined its authority. 
They have restrained it to the exercise of certain powers, and 
reserved all others to the states or to the people. It is a popu- 
lar government. Those, who administer it, are responsible to 
the people. It is as popular, and just as much emanating from 
the people, as the state governments. It is created for one pur- 
pose ; the state governments for another. It may be altered, 
and amended, and abolished at the will of the people. In short, 
it was made by the people, made for the people, and is respon- 
sible to the people. . . . 

The constitution of the United States is to receive a reason- 
able interpretation of its language, and its powers, keeping in 
view the objects and purposes, for which those powers were 
conferred. By a reasonable interpretation, we mean, that in 
case the words are susceptible of two different senses, the one 
strict, the other more enlarged, that should be adopted, which 
is most consonant with the apparent objects and intent of the 
constitution ; that which will give it efficacy and force, as a 
government, rather than that, which will impair its operations, 
and reduce it to a state of imbecility. Of course we do not 
mean, that the words for this purpose are to be strained beyond 
their common and natural sense ; but keeping within that limit, 
the exposition is to have a fair and just latitude, so as on the 
one hand to avoid obvious mischief, and on the other hand to 
promote the public good. . . . 

But a constitution of government, founded by the people for 
themselves and their posterity, and for objects of the most 
momentous nature, for perpetual union, for the establishment 
of justice, for the general welfare, and for a perpetuation of the 
blessings of liberty, necessarily requires, that every interpre- 
tation of its powers should have a constant reference to these 
objects. No interpretation of the words, in which those pow- 



1833-1878] CRITICAL COMMENT 275 

ers are granted, can be a sound one, which narrows down their 
ordinary import, so as to defeat those objects. 

Joseph Story, Commentaries on the Constitution of the United States. 134, 
139, 141. 

GLADSTONE (1878) 

The students of the future, in this department [political 
philosophy], will have much to say in the way of comparison 
between American and British institutions. The relationship 
between these two is unique in history. It is always interest- 
ing to trace and to compare Constitutions, as it is to compare 
languages ; especially in such instances as those of the Greek 
States and the Italian Republics, or the diversified forms of 
the feudal system in the different countries of Europe. But 
there is no parallel in all the records of the world to the case 
of that prolific British mother, who has sent forth her innu- 
merable children over all the earth to be the founders of half- 
a-dozen empires. She, with her progeny, may almost claim 
to constitute a kind of Universal Church in politics. But, 
among these children, there is one whose place in the world's 
eyes and in history is superlative : it is the American Repub- 
lic. She is the oldest born. She has, taking the capacity of 
her land into view as well as its mere measurement, a natural 
base for the greatest continuous empire ever established by 
man. 

. . . And for the political student all over the world, it 
will be beyond anything curious as well as useful to examine, 
with what diversities, as well as what resemblances, of ap- 
paratus, the two greater branches of a race born to command 
have been minded, or induced, or constrained to work out, in 
their sea-severed seats, their political destinies according to 
the respective laws appointed for them. . . . 

There were, however, the strongest reasons why America 
could not grow into a reflection or repetition of England. 
Passing from a narrow island to a continent almost without 
bounds, the colonists at once, and vitally, altered their condi- 
tions of thought, as well as of existence, in relation to the 
most important and most operative of all social facts, the 
possession of the soil. . . . 



276 FEDERAL CONSTITUTION [Ch. XVII 

It is to the honour of the British monarchy that, upon the 
whole, it frankly recognized the facts, and did not pedantically 
endeavour to constrain by artificial and alien limitations the 
growth of the infant States. It is a thing to be remembered 
that the accusations of the colonies in 1776 were entirely 
levelled at the King actually on the throne, and that a gen- 
eral acquittal was thus given by them to every preceding 
reign. Their infancy had been upon the whole what their 
manhood was to be, self-governed and republican. Their Rev- 
olution, as we call it, was like ours in the main, a vindication 
of liberties inherited and possessed. It was a Conservative 
revolution ; and the happy result was that, notwithstanding the 
sharpness of the collision with the mother-country, and with 
domestic loyalism, the Thirteen Colonies made provision for their 
future in conformity, as to all that determined life and manners, 
with the recollections of their past. The two constitutions of 
the two countries express indeed rather the differences than the 
resemblances of the nations. The one is a thing grown, the 
other a thing made; the one a praxis, the other a poiesis; 
the one the offspring of tendency and indeterminate time, the 
other of choice and of an epoch. But, as the British Constitution 
is the most subtle organism which has proceeded from the 
womb and the long gestation of progressive history, so the 
American Constitution is, so far as I can see, the most wonder- 
ful work ever struck off at a given time by the brain and pur- 
pose of man. It has had a century of trial, under the pressure 
of exigencies caused by an expansion unexampled in point of 
rapidity and range : and its exemption from formal change, 
though not entire, has certainly proved the sagacity of the con- 
structors, and the stubborn strength of the fabric. 

William Ewart Gladstone, Kin Beyond Sea in Gleanings of Past 
Years. I. 204-212. 

COOLET (1880) 

In America the leading principle of constitutional liberty has 
from the first been, that the sovereignty reposed in the people ; 
and as the people could not in their collective capacity exercise 
the powers of government, a written constitution was by general 
consent agreed upon in each of the States. These constitutions 



1878-1880] CRITICAL COMMENT 277 

create departments for the exercise of sovereign powers ; pre- 
scribe the extent of the exercise, and the methods, and in some 
particulars forbid that certain powers which would be within 
the compass of sovereignty shall be exercised at all. , . . The 
constitution, moreover, is in the nature of a covenant of the 
sovereign people with each individual thereof, under which, 
while they intrust the powers of government to political agencies, 
they also divest themselves of the sovereign power of making 
changes in the fundamental laws except by the method in the 
constitution agreed upon. The Constitution of the United 
States creates similar governmental trusts and imposes similar 
restrictions. . . . 

The government created by the Constitution is one of limited 
and enumerated powers, and the Constitution is the measure and 
the test of the powers conferred. Whatever is not conferred is 
withheld, and belongs to the several States or to the people 
thereof. As a constitutional principle this must result from a 
consideration of the circumstances under which the Constitution 
was formed. The States were in existence before, and possessed 
and exercised nearly all the powers of sovereignty. The Union 
was in existence, but the Congress which represented it possessed 
a few powers only conceded to it by the States, and these cir- 
cumscribed and hampered in a manner to render them of little 
value. . . . But it was not within the intent of those who formed 
the Constitution to revolutionize the States, to overturn the pre- 
sumptions that supported their authority, or to create a new 
government with uncertain and undefined powers. The purpose, 
on the contrary, was to perpetuate the States in their integrity, 
and to strengthen the union in order that they might be per- 
petuated. . . . By Art. VI. it is declared that " This Constitution 
and the laws of the United States which shall be made in pur- 
suance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme 
law of the land ; and the judges in every State shall be bound 
thereby, anything in the Constitution or laws of any State to 
the contrary notwithstanding." Upon this it is to be observed : — 

(1) The Congress of the United States derives its power to 
legislate from the Constitution, which is the measui-e of its au- 
thority ; and any enactment of Congress which is opposed to 



278 FEDERAL CONSTITUTION [Ch. XVII 

its provisions, or is not within the grant of powers made by it, 
is unconstitutional, and therefore no law, and obligatory upon 
no one. 

(2) As between a law of the United States made in pursuance 
of the Constitution and a treaty made under the authority of the 
United States, if the two in any of their provisions are found 
to conflict, the one last in point of time must control. For the 
one as well as the other is an act of sovereignty, differing only 
in form and in the organ or age nc}'' through which the sovereign 
will is declared. Each alike is the law of the land in its adop- 
tion, and the last law must repeal everything that is of no 
higher authority which is found to come in conflict with it. 
A treaty may therefore supersede a prior act of Congress ; and, 
on the other hand, an act of Congress may supersede a prior 
treaty. 

(3) A State law must yield to the supreme law, whether ex- 
pressed in the Constitution of the United States, or in any of its 
laws or treaties, so far as they come in collision, and whether 
it be a law in existence when the " supreme law" was adopted 
or enacted afterward. The same is true of any provision in the 
constitution of any State which is found to be repugnant to the 
Constitution of the Union. And not only must " the judges in 
every State " be bound by such supreme law, but so must the 
State itself, and every official in all its departments, and every 
citizen. 

(4) The Constitution itself never yields to treaty or enact- 
ment; it neither changes with time, nor does it in theory bend 
to the force of circumstances. It may be amended according to 
its own permission ; but while it stands it is "a law for rulers 
and people, equally in war and in peace, and covers with the 
shield of its protection all classes of men, at all times and under 
all circumstances." Its principles cannot, therefore, be set aside 
in order to meet the supposed necessities of great crises. 

Thomas M. Coolet, Constitutional Law. 22-32. 

J. C. HURD (1881) 

The Revolutionary or Continental Congress, July 4, 1776, 
declared the "United Colonies" to be free and independent 
States, " in the name and by the authority of the good people of 



1880-1889] CRITICAL COMMENT 279 

these colonies." But the delegates to that Congress, before as 
well as after the establishment of State governments, had re- 
ceived their appointment from electoral agencies which, in their 
connection with the people whom they claimed to represent, 
were very different in the various colonies. 

In the government, under the Articles of Confederation, the 
united political people of the States exercised their power for 
general national purposes, by the intervention of the same 
organs by which they exercised power for local or State 
purposes. 

In the government, under the Constitution, the same political 
people, without a revolution, i. e., without any shifting of sove- 
reign power, exercised their powers for national purposes by 
the immediate action, through special representatives, of the 
political people of each State. 

The possession by this "people of the United States" of 
the powers exerted by a general government, co-existent with 
the possession by the same people of other powers, exerted by the 
State governments, continued, in manner and form more or less 
distinctly recognized, from the time of the Revolution onward ; 
and, prior to the late civil war, no political people or body 
politic had appeared, on the territory recognized by foreign 
nations from time to time as belonging to the United States, in 
any public international relation, except as one of the United 
States, or been recognized by foreign nations or by any State 
of the Union as using or holding in severalty the powers ex- 
erted by the general government. 

John C. Hukd, The Theory of our National Existence. 134, 135. 

E. P. SMITH (1889) 

In ample season for discussion and action before the adjourn- 
ment of the first session of the first Congress, Madison pre- 
sented a selection of the most desirable amendments suggested 
by the ratifying States. The changes most widely called for 
sacrificed nothing vital to the success of the new instrument. 
They rendered the Constitution its own expounder ; they con- 
centrated all the tenets of liberty in Magna Charta, the Petition 
of Right, and the Bill of Rights. The prompt action of the 
States in ratifying ten out of the twelve amendments submitted 



280 FEDERAL CONSTITUTION [Ch. XVII 

by Congress proved that these amendments were needed, and that 
the efforts of the anti-Federalists for a second constitutional 
convention were not fruitless or unreasonable. . . . 

The amendments once ratified, all notes of opposition were 
lost in the chorus of admiration that resounded from every 
quarter. In the worship of the Constitution that instantly suc- 
ceeded, men forgot that ' ' it had been extorted from the grind- 
ing necessity of a reluctant people." Even those who had so 
powerfully contended for a second constitutional convention 
began during Washington's first administration to prove as pre- 
eminently " the friends of the Constitution," and it was almost 
impossible to believe that an instrument, accepted by all parties 
as the last word of political wisdom, had been produced in a 
conflict of opinion, adopted with doubt, ratified with hesitation, 
and amended with difficulty. 

Ebward p. Smith, in J. F. Jameson's Essays on the Constitutional History 
of the United States. Ill, 115. 

HART (1891) 

During the first few years of its existence the Constitution 
was most fortunately administered by those who had framed it, 
believed in it, and had the wisdom to apply it. Men like Ham- 
ilton and Washington shaped a series of organizing acts which 
proved but less important than the original text. Then came 
a period of nearly a quarter of a century (1793-1815), when the 
Republic was involved in foreign complications, including an 
annexation of territory larger than its original area, and ending 
in a war; the power over foreign affairs was thus consolidated. 
The next twenty years (1815-1835) was a time of great com- 
mercial growth, and public sentiment favored the application 
of national powers, both of creation and regulation. A bank 
was secured; internal improvements applied; commercial treaties 
were negotiated ; and the protective policy was initiated. Then 
came (1835-1860) a period of great effort to restrict federal 
powers, partly on principle, and partly lest those powers should 
be used against slavery. . . . 

. . . The Constitution of 1789 has therefore undergone great 
changes, most of them in the direction of greater centraliza- 
tion. Amendments have rarely been necessary, because each 



1890-1894] CRITICAL COMMENT 281 

generation has found the general principles laid down sufficient 
to give the government power to deal with new questions which 
come before it. The elasticity and flexibility of the Constitu- 
tion have not only preserved the federation, but have introduced 
a new principle into federal government. A Constitution framed 
for four millions of people, grouped in thirteen thinly populated 
rural States, suffices for sixty-three millions, in forty-four rich 
States, abounding in cities. The permanence of the United 
States is not due to the constructive skill of its founders ; it 
rests upon the fact that the Constitution may, by the insensible 
effect of public opinion, slowly be expanded, within the forms 
of law, to a settlement of new questions as they arise. 

Albert Bushnell Hart, Federal Government. 59, 60. 
STEVENS (1894) 

On the whole, Americans, with their democratic tendencies, 
owe very much of the stability of their government to the 
weakness of their legislature and the strength of their execu- 
tive. Had Congress possessed the power of Pai'liament to 
alter constitutional principle itself, by a majority vote at any 
session, and had the cabinet controlled the President as the 
English cabinet does the sovereign, the American common- 
wealth very probably might have been wrecked in its construct- 
ive period, or in passing through the storms of later time. 
The presidency is justly regarded by Americans as one of the 
most valuable creations of the Constitution of 1787. And the 
fact that the office is rooted in the past institutions of the 
race is not only the explanation of its existence, but a real, 
even though unrecognized, cause of its hold on the national 
heart. . . . 

But as soon as the draft of the Constitution left the Con- 
vention, the lack of a formal bill was severely and per- 
sistently criticised by the people. And the promise that 
one should be added, as soon as the new government actu- 
ally got under way, was found necessary in order to induce 
some of the principal States to ratify the instrument. The 
first ten amendments, therefore, were adopted as speedily 
as possible by the first Congress and the nation ; and to all 
intents they are to be regarded as a part of the Constitution in 



282 FEDERAL CONSTITUTION [Ch. XVII 

its original unity, as a product of the formative period. Tlieir 
position in this respect is essentially different from that of the 
amendments, which are the outcome of subsequent national 
experience. 

Thus there is not only a bill of rights in the Constitution of 
the United States, but that bill of rights was consciously de- 
manded by the American people themselves against the judg- 
ment of their own Constitutional Convention, and for the 
express reason that they regarded the liberties included therein 
as their liberties, because based upon old English law. 
C. Ellis Stevens, Sources of the Constitution of the United States. 173, 213. 

BRTCE (189G) 

The Constitution of 1789 deserves the veneration with which 
the Americans have been accustomed to regard it. It is true 
that many criticisms have been passed upon its arrangement, 
upon its omissions, upon the artificial character of some of the 
institutions it creates. Recognizing slavery as an institution 
existing in some States, and not expressly negativing the right 
of a State to withdraw from the Union, it has been charged 
with having contained the germ of civil war, though that germ 
took seventy years to come to maturity. And whatever success 
it has attained must be in large measure ascribed to the polit- 
ical genius, ripened by long experience, of the Anglo-American 
race, by whom it has been worked, and who might have man- 
aged to work even a worse-drawn instrument. Yet, after all 
deductions, it ranks above every other written constitution for 
the intrinsic excellence of its scheme, its adaptation to the cir- 
cumstances of the people, the simplicity, brevity, and precision 
of its language, its judicious mixture of definiteness in principle 
with elasticity in details. One is therefore induced to ask, be- 
fore proceeding to examine it, to what causes, over and above 
the capacity of its authors, and the patient toil they bestowed 
upon it, these merits are due, or in other words, what were the 
materials at the command of the Philadelphia Convention for 
the achievement of so great an enterprise as the creation of a 
nation by means of an instrument of government. The Amer- 
ican Constitution is no exception to the rule that everything 
which has power to win the obedience and respect of men muslj 



1896-1898] CRITICAL COMMENT 283 

haA'e its roots deep in the past, and that the more slowly every 
institution has grown, so much the more enduring is it likely to 
prove. There is little in this Constitution that is absolutely 
new. There is much that is as old as Magna Charta. 

James Bktce, American Commonwealth?- 13-14. 
THORPE (1898) 

The State has been conserved, and the purposes for which 
the constitutions were framed — typically set forth in the pre- 
amble to the national Constitution — have been fairly well real- 
ized. Statesmen of the eighteenth century would impute this 
to the efficacy of the system of checks and balances. By this 
they meant the distinct functions of the executive, the legis- 
lative, and the judiciary; the different ways in which they are 
chosen ; the different times when they hand over their power to 
their successors; the peculiar combination of the legislative 
and the executive in the administration of government, and the 
ultimate responsibility of all public servants to the electors. 
This correlation of parts and functions is the peculiarity of the 
American system. Though arbitrary and ever subject to modi- 
fication at the will of the people, the system has been tried with 
success, has never departed from the principles on which it was 
founded, and has strengthened the conservatism which ever 
underlies American politics. One commenting on government 
in America to-day would not be likely to call attention to, much 
less to emphasize, the system of checks and balances. He 
would attribute the virtue of our institutions to economic and 
sociological causes. He would dwell on the people, not on the 
system. He would analyze political parties, public opmion, 
and our social institutions. He would not be likely even to use 
the terms checks and balances. In the eighteenth century gov- 
ernment was conceived as a device ; in our times it is thought 
of rather as an organism. It is the content, not the language, 
of the Constitution that has changed. The supreme law, as 
time goes on, is given more and more an economic interpre- 
tation. If adapted to the wants of the country, such interpre- 
tation becomes a party doctrine, and if adopted by the majority, 
it becomes an administrative measure. If it is believed to in- 
■ 1 Copyright, 1896, by the Macmillan Co. 



284 FEDERAL CONSTITUTION [Ch. XYII 

volve essential rights, it may become a part of a revised con- 
stitution. Thus, at last, the constitutions become the depository 
of settled politics and the register of the growth of the State. 
Fkancis N. Thorpk, A Constitutional Historj of the American People.^ 46, 47. 

Mclaughlin (190o) 

It has seemed to me, however, that sufficient attention is not 
commonly paid to the influence and bearing of these basic prin- 
ciples of political philosophy in the period succeeding the Rev- 
olution. The foundation doctrines everywhere current during 
the Revolutionary time were not likely to disappear at once, for 
on them rested the right of rebellion, through them came inde- 
pendence, upon them was founded national existence. We 
might be willing to assert without investigation, that the ideas 
which men cherished and the philosophy upon which they acted 
would be sure to affect the thoughts and activities of public 
men during the early constitutional period and for many years 
after the establishment of the United States. It is certainly 
important for us to understand the ideas which men held con- 
cerning the nature and origin of the state and society, and to 
know the foundations upon which they believed government to 
rest. 

. . . When the constitution of the United States was being 
made, men did not speak or think in the terms of the organic 
philosophy. Some of them, it is true, were more or less dis- 
tinctly conscious of the essential oneness of the American 
people ; some of them believed that the states never had been 
sovereign ; some of them, seeing the fact of nationality, de- 
manded that political organization should be in keeping with 
this fact. But the organic philosophy was developed in the 
next century, and like all philosophy it came not from the 
thinking of the closeted philosopher, but from the actual devel- 
opment of society. 

... I mean simply to assert that if we seek to follow out 
historically the interpretation of the Constitution or to find out 
what men thought of it at the beginning, we must get into their 
attitude of mind and understand their method of thinking. 

. . . The constitutional history of the United States is in no 
1 Copyright, 1898, by Harper & Brothers. 



1898-1900] CRITICAL COMMENT 285 

small degree taken up with tracing opinion and assertion as to 
the actual character of the Union ; and the historian is com- 
pelled to notice the change which took place in the opinions, 
words and thoughts of statesmen as they were influenced by the 
change in society and by the prevalence or growth of doctrines 
as to the origin and nature of the State. 

. . . My purpose in this paper has been to show: (1) That 
the men of one hundred and twenty-five years ago thought 
within the limits of the compact philosophy; (2) That they 
carried the compact idea so far that they actually spoke of the 
Constitution as a social compact ; (3) That it is necessary for 
us to remember their fundamental ideas and to interpret their 
words and conscious acts in the light of their methods of 
thought ; (4) That in the development of modern organic phil- 
osophy new ideas were introduced and new meanings assigned 
to terms; (5) That from this latter fact, from the inability to 
agree on fundamental conceptions, arose confusion; (6) That 
the doctrine of state sovereignty as it has been developed rests 
on philosophic presuppositions almost if not entirely unknown 
to the framers of the Constitution; (7) That if we use the 
terms and insist on the ideas of the organic philosophy, we are 
entitled to seek the realities lying behind the words of men. 

Andrew McLaughlin, Social Compact and Constitutional Construction, in 
American Historical Review, April, 1900. 468-490. 



286 WASHINGTON'S FAREWELL [Ch. XVIII 



Chaptee XVIII 
WASHINGTON'S FAREWELL ADDRESS 

SUGGESTIONS 

This document was addressed to the People of the United States as 
a final word of parting from the President. Its date the 17th of 
September, indicates the day of its publication, but during the pre- 
vious summer Washington, with the advice of Madison and Hamilton, 
had been at work upon the address. Its text contains the personal 
point of view which the Father of Our Country assumed towards the 
government. It sets forth his policy in domestic and foreign relations ; 
it abounds in wholesome advice in regard to affairs of state ; and it is 
reminiscent of his own share in the building up of a government 
to the organization and administration of which he had contributed 
so great a part. 

The instruction given in this document to the American people has 
been followed until the present decade with much faithfulness. In 
the study of this final declaration we should note the doctrines of the 
Constitutional Convention, the pi-inciples of Washington's adminis- 
tration, and the fear which he felt of a division resulting from sec- 
tional partisanship. 

In reading the Farewell Address, one is compelled to dwell upon the 
noble spirit, the unselfish motives, and exalted ideal of its author, 
whose chief aim had been to bind the separate states together in a 
lasting union. 

For Outlines and Analysis, see Appendix B, § 5. 

DOCUMENT 

Washington's Farewell Address to the People of the United 
States (September 17th, 1796) 

George Friends, and Fellow-Citizens, The period for 

Washmgton. ^ ^^^ election of a Citizen, to administer the Ex- 

Works, xiu. ' 

277-325. ecutive Government of the United States, being not 



1796] TEXT 287 

far distant, and the time actually arrived, when your 
thoughts must be employed in designating the per- 
son, who is to be clothed with that important trust, 
it appears to me proper, especially as it may conduce 
to a more distinct expression of the public voice, 
that I should now apprize you of the resolution I 
have formed, to decline being considered among the 
number of those, out of whom a choice is to be 
made. 

I beg you, at the same time, to do me the justice 
to be assured, that this resolution has not been 
taken, without a strict regard to all the considera- 
tions appertaining to the relation, which binds a 
dutiful citizen to his country — and that, in withdraw- 
ing the tender of service — which silence in my situa- 
tion might imply, I am influenced by no diminution 
of zeal for your future interest, no deficiency of 
grateful respect for your past kindness ; but am 
supported by a full conviction that the step is com- 
patible with both. 

The acceptance of, and continuance hitherto in. The " Third 

the office to which your suffrages have twice called J.^™ '.' *^*" 
•' ° . ,. . Qition IS em- 

me, have been a uniform sacrifice of inclination to phasized by 

the opinion of duty, and to a deference for what Washing- 

ton's deter- 
appeared to be your desire. — I constantly hoped, minationto 

that it would have been much earlier in my power, retire at the 
consistently with motives, which I was not at liberty gg^jQ^^j *q^^ 
to disregard, to return to that retirement, from 
which I had been reluctantly drawn. — The strength 
of my inclination to do this, previous to the last 
election, had even led to the preparation of an ad- 
dress to declare it to you ; but mature reflection on 
the then perplexed and critical posture of our affairs 
with foreign Nations, and the unanimous advice of 
persons entitled to my confidence, impelled me to 
abandon the idea. — 

I rejoice that the state of your concerns, external 
as well as internal, no longer renders the pursuit of 
inclination incompatible with the sentiment of duty, 



288 



WASHINGTON'S FAREWELL [Ch. XVIII 



Personal 
modesty was 
the foun- 
dation for 
Washing- 
ton's habit- 
ual justice 
to himself 
and others. 



or propriety ; and am persuaded, whatever partiality 
may be retained for my services, that, in the present 
circumstances of our country, you will not dis- 
approve my determination to retire. 

The impressions, with which I first undertook the 
arduous trust, were explained on the proper occa- 
sion. In the discharge of this trust, I will only 
say, that I have, with good intentions, contributed 
towards the organization and administration of the 
government, the best exertions of which a very fal- 
lible judgment was capable. — Not unconscious, in 
the outset, of the inferiority of my qualifications, 
experience in my own eyes, perhaps still more in the 
eyes of others, has strengthened the motives to dif- 
fidence of myself; and every day the increasing 
weight of years admonishes me more and more, that 
the shade of retirement is as necessary to me as it 
will be welcome. — Satisfied, that, if any circum- 
stances have given peculiar value to my services, 
they were temporary, I have the consolation to be- 
lieve, that, while choice and prudence invite me to 
quit the political scene, patriotism does not forbid it. 

In looking forward to the moment, which is in- 
tended to terminate the career of my public life, my 
feelings do not permit me to suspend the deep ac- 
knowledgment of that debt of gratitude, which I owe 
to my beloved country, — for the many honours it 
has conferred upon me ; still more for the steadfast 
confidence with which it has supported me ; and for 
the opportunities I have thence enjoyed of mani- 
festing my inviolable attachment, by services faith- 
ful and persevering, though in usefulness unequal 
to my zeal. — If benefits have resulted to our coun- 
try from these services, let it always be remembered 
to your praise, and as an instructive example in our 
annals, that under circumstances in which the Pas- 
sions, agitated in every direction, were liable to 
mislead, amidst appearances sometimes dubious, 
vicissitudes of fortune often discouraging, in situ- 



1796] TEXT 289 

ations in which DOt iinfrequently want of success 
has conntenanced the spirit of criticism, the con- 
stancy of your support was the essential prop of the 
efforts, and a guarantee of the plans by which they 
were effected. — Profoundly penetrated with this 
idea, I shall carry it with me to the grave, as a 
strong incitement to unceasing vows that Heaven 
may continue to you the choicest tokens of its be- 
neficence — that your union and brotherly affection 
may be perpetual — that the free constitution, which 
is the work of your hands, may be sacredly main- 
tained — that its administration in every department 
may be stamped with wisdom and virtue — that, in 
fine, the happiness of the people of these States, 
under the auspices of liberty, may be made com- 
plete, by so careful a preservation and so prudent a 
use of this blessing as will acquire to them the 
glory of recommending it to the applause, the affec- 
tion, and adoption of every nation, which is yet a 
stranger to it. 

Here, perhaps, I ought to stop. — But a solicitude 
for your welfare, which cannot end but with my life, 
and the apprehension of danger, natural to that soli- 
citude, urge me on an occasion like the present, to 
offer to your solemn contemplation, and to recom- 
mend to your frequent review, some sentiments; 
which are the result of much reflection, of no incon- 
siderable observation, and which appear to me all- 
important to the permanency of your felicity as a 
People. — These will be offered to you with the more 
freedom, as you can only see in them the disinter- 
ested warnings of a parting friend, who can possibly 
have no personal motive to bias his counsel. — Nor 
can I forget, as an encouragement to it your indul- 
gent reception of my sentiments on a former and not 
dissimilar occasion. 

Interwoven as is the love of liberty with every Eeference 
ligament of your hearts, no recommendation of mine foye^of f^ee- 
is necessary to fortify or confirm the attachment. — dom in the 

19 



290 



WASHINGTON'S FAREWELL [Ch. XVIII 



Teutonic 
people. 



1176-1783. 



The Unity of Grovernment which constitutes you 
one people, is also now dear to you. — It is justly 
so ; — for it is a main Pillar in the Edifice of your 
real independence ; the support of your tranquillity 
at home ; your peace abroad ; of your safety ; of 
your prosperity in every shape ; of that very Lib- 
erty, which you so highly prize. — But as it is easy 
to foresee, that, from different causes, and from dif- 
ferent quarters, much pains will be taken, many 
artifices employed, to weaken in j^our minds the 
conviction of this truth ; — as this is the point in 
your political fortress against which the batteries 
of internal and external enemies will be most con- 
stantly and actively (though often covertly and 
insidiously) directed, it is of infinite moment, that 
you should properly estimate the immense value of 
your national Union to your collective and individ- 
ual happiness ; — that you should cherish a cordial, 
habitual, and immovable attachment to it; accus- 
toming yourselves to think and speak of it as of 
the Palladium of your political safety and pros- 
perity; watching for its preservation with jealous 
anxiety; discountenancing whatever may suggest 
even a suspicion that it can in any event be aban- 
doned ; and indignantly frowning upon the first 
dawning of every attempt to alienate any portion 
of our Country from the rest, or to enfeeble the sa- 
cred ties which now link together the various parts. 

For this you have every inducement of sympathy 
and interest. Citizens, by birth or choice, of a com- 
mon country, that country has a right to concentrate 
your affections. The name of American, which be- 
longs to you, in your national capacity, must always 
exalt the just pride of Patriotism, more than any ap- 
pellation derived from local discriminations. — With 
slight shades of difference, you have the same Reli- 
gion, Manners, Habits, and political Principles. — 
You have in a common cause fought and triumphed 



1796] TEXT 291 

together; the Independence and Liberty you pos- 
sess are the work of joint counsels, and joint efforts 
— of common dangers, sufferings, and successes. 

But tliese considerations, however powerfully they 
address themselves to your sensibility, are greatly 
outweighed by those, which apply more immediately 
to your Interest. — Here every portion of our coun- 
try finds the most commanding motives for carefully 
guarding and preserving the Union of the whole. 

The Norths in an unrestrained intercourse with Ah-eady 

the South, protected by the equal Laws of a common *^^^ North 

government, finds in the productions of the latter mercial cen- 

great additional resources of maritime and commer- t^"©. and the 

cial enterprise — and precious materials of manufac- o-j-eat aeri- 

turing industry. — The Soiith, in the same inter- cultural 

course, benefiting by the agency of the North, sees its ^g 1 _ x 

agriculture grow and its commerce expand. Turning tucky, Ten- 

partly into its own channels the seamen of the North, ^lessee, and 
. ^ , . . , ..... ,, T the North- 

it finds its particular navigation invigorated ; — and, ^^est Terri- 

while it contributes, in different ways, to nourish tory — was 

and increase the general mass of the national navi- ^y peopled 

gation, it looks forward to the protection of a mari- by emigrants 

time strength to which itself is unequally adapted. ^^ ^^^^^ ^^ 

The East, in a like intercourse with the West, al- time'a fresh 

ready finds, and in the progressive improvement of market was 
. . . T ^ T 1 - -n to develop, 

interior communications, by land and water, will more 

and more find a valuable vent for the commodities 
which it brings from abroad, or manufactures at 
home. — The West derives from the East supplies 
requisite to its growth and comfort — and, what is 
perhaps of still greater consequence, it must of ne- 
cessity owe the secure enjoyment of indispensable 
outlets for its own productions to the weight, influ- 
ence, and the future maritime strength of the Atlan- 
tic side of the Union, directed by an indissoluble 
community of interest as one Nation. — Any other r^-^e Louisi- 
tenure by which the West can hold this essential ana Purchase 
advantage, whether derived from its own separate J,^ j^^? ■, 
strength, or from an apostate and unnatural con- the balance. 



^92 WASHINGTON'S FAREWELL [Ch. XVIIl 

nexion with any foreign Power, must be intrinsically 
precarious. 

While, then, every part of our country thus feels 
an immediate and particular interest in Union, all 
the parts combined in the united mass of means and 
efforts cannot fail to find greater strength, greater 
resource, proportionably greater security from ex- 
ternal danger, a less frequent interruption of their 
Peace by foreign Nations ; and, what is of inesti- 
mable value ! they must derive from Union an 
exemption from those broils and wars between 
themselves, which so frequently afflict neighbour- 
ing countries not tied together by the same gov- 
ernment; which their own rivalships alone would 
be sufficient to produce ; but which opposite foreign 
alliances, attachments, and intrigues would stimu- 
ialisin. ^^''' ^^^® ^^^ embitter. — Hence, likewise, they will 
avoid the necessity of those overgrown Military 
establishments, which, under any form of govern- 
ment, are inauspicious to liberty, and which are to 
be regarded as particularly hostile to Republican 
Liberty. In this sense it is, that your Union ought 
to be considered as a main prop of your liberty, and 
that the love of the one ought to endear to you the 
preservation of the other. 

These considerations speak a persuasive language 
to every reflecting and virtuous miud, — and ex- 
hibit the continuance of the Union as a primary 
object of Patriotic desire. — Is there a doubt, 
whether a common government can embrace so 
large a sphere? Let experience solve it. — ^To lis- 
ten to mere speculation in such a case were crimi- 
nal. We are authorized to hope, that a proper 
organization of the whole, with the auxiliary agency 
of governments for the respective subdivisions, will 
afford a happy issue to the experiment. 'T is well 
worth a fair and full experiment. With such pow- 
erful and obvious motives to Union, affecting all 
parts of our country, while experience shall not 



1796] TEXT 293 

have demonstrated its impi'acticability, there will 

always be reason to distrust the patriotism of those, 

who in any iq^uarter may endeavour to weaken its 

bands. 

In contemplating the causes, which may disturb 

our Union, it occurs as matter of serious concern, 

that any ground should have been furnished for 

characterizing parties by Geographical discrimina- N'ote, as 

tions, — Northern and Southern. — Atlantic and ^*®^ t?^^' 

pies, ISTulli- 

Western ; whence designing men may endeavour to fication in 
excite a belief, that there is a real difference of ,^^^^*^j£|^*^' 
local interests and views. One of the expedients Mexican ' 
of party to acquire influence, within particular dis- War, 1847, 
ti'icts, is to misrepresent the opinions and aims of igg| and'the 
other districts. — You cannot shield yourselves too Silver Ques- 
much against the jealousies and heartburnings *^^°' 
which spring from these misrepresentations; they 
tend to render alien to each other those, who ought 
to be bound together by fraternal affection, — The 
inhabitants of our Western country have lately had a 
useful lesson on this head. — They have seen, in the 
negotiation by the Executive, and in the unanimous 
ratification by the Senate, of the treaty with Spain, 
and in the universal satisfaction at that event, The Jay 
throughout the United States, a decisive proof how pfnckney's 
unfounded were the suspicions propagated among Treaty of 
them of a policy in the General Government and in {jJeVetnlvi- 
the Atlantic States unfriendly to their interests in gation of the 
regard to the Mississippi. — They have been wit- Mississippi, 
nesses to the formation of two Treaties, that with place of de- 
Great Britain, and that with Spain, which secure to posit" with- 
them every thing they could desire, in respect to our |^j^ territory, 
Foreign Relations, towards confirming their pros- free of duty 
perity. — Will it not be their wisdom to rely for l^^J^^^^' 
the preservation of these advantages on the Union 
by which they were procured ? — Will they not 
henceforth be deaf to those advisers, if such there 
are, who would sever them from their Brethren, and 
connect them with Aliens? — 



294 WASHINGTON'S FAREWELL [Ch. XVm 

To the efficacy and permanency of your Union, a 
Government for the whole is indispensable. — No 
alliances however strict between the parts can be 
an adequate substitute. — They must inevitably ex- 
perience the infractions and interruptions, which all 
alliances in all times have experienced. — Sensible 
Belief that of this momentous truth, you have improved upon 
*f r fede^ your first essay, by the adoption of a Constitution 
ation were of G-overnment better calculated than your former 

weak, but f^^ ^^^ intimate Union, and for the efficacious man- 
the Constitu- „ ^, . 

tion strong, agement of your common concerns. Ihis govern- 
ment, the offspring of our own choice, uninfluenced 
and unawed, adopted upon full investigation and 
mature deliberation, completely free in its prin- 
ciples, in the distribution of its powers, uniting 
security with energy, and containing within itself a 
provision for its own amendment, has a just claim 
to your confidence and your support. — Respect for 
its authority, compliance with its Laws, acquiescence 
in its measures, are duties enjoined by the funda- 
mental maxims of true Liberty. — The basis of our 
political systems is the right of the people to make 
No secession and to alter their Constitutions of Government. — 
possible. -g^^ ^jjg Constitution which at any time exists, till 

changed by an explicit and authentic act of the 
whole People, is sacredly obligatory upon all. — 
The very idea of the power and the right of the 
People to establish Government, presupposes the 
duty of every individual to obey the established 
Government. 

All obstructions to the execution of the Laws, 
all combinations and associations, under whatever 
plausible character, with the real design to direct, 
control, counteract, or awe the regular deliberation 
and action of the constituted authorities, are de- 
structive of this fundamental principle, and of fatal 
tendency. — They serve to organize faction, to give 
it an artificial and extraordinary force — to put in 
the place of the delegated will of the Nation, the 



1796] TEXT 295 

will of a party ; — often a small but artful and en- 
terprising minority of the community ; — and, ac- 
cording to the alternate triumphs of different parties, 
to make the public administration the mirror of the 
ill-concerted and incongruous projects of faction, 
rather than the organ of consistent and wholesome 
plans digested by common councils, and modified 
by mutual interests. — 

However combinations or associations of the 
above descriptions may now and then answer popu- 
lar ends, they are likely, in the course of time and 
things, to become potent engines, by which cun- 
ning, ambitious, and unprincipled men will be en- 
abled to subvert the Power of the People, and to 
usurp for themselves the reins of Government; 
destroying afterwards the very engines, which have 
lifted them to unjust dominion. — 

Towards the preservation of your Government, 
and the permanency of j'our present happy state, it 
is requisite, not only that you steadily discoun- 
tenance irregular oppositions to its acknowledged 
authority, but also that you resist with care the 
spirit of innovation upon its principles, however 
specious the pretexts. — One method of assault may 
be to effect, in the forms of the Constitution, alter- 
ations, which will impair the energy of the system, 
and thus to undermine what cannot be directly over- 
thrown. — In all the changes to which you may be Constitu- 
invited, remember that time and habit are at least tional 
as necessary to fix the true character of Govern- ments 
ments, as of other human institutions — that ex- 
perience is the surest standard, by which to test the 
real tendency of the existing Constitution of a coun- 
try — that facility in changes, upon the credit of 
mere hypothesis and opinion, exposes to perpetual 
change, from the endless variety of hypothesis and 
opinion : — and remember, especially, that for the 
efficient management of your common interests, in 
a country so extensive as ours, a Government of as 



296 WASHINGTON'S FAREWELL [Ch. XVIII 

much vigor as is consistent with the perfect security 
of Liberty is indispensable. Liberty itself will find 
in such a G-overnment, with powers properly dis- 
tributed and adjusted, its surest Guardian. — It is, 
indeed, little else than a name, where the Grovern- 
ment is too feeble to withstand the enterprise of 
faction, to confine each member of the society 
within the limits prescribed by the laws, and to 
maintain all in the secure and tranquil enjoyment 
of the rights of person and property. 

I have already intimated to you the danger of 
Parties in the State, with particular reference to the 
founding of them on Geographical discriminations. 

— Let me now take a more comprehensive view, 
and warn you in the most solemn manner against 
the baneful effects of the Spirit of Party, generally. 

This Spirit, unfortunately, is inseparable from our 
nature, having its root in the strongest passions of 
the human mind. — It exists under different shapes 
in all Governments, more or less stifled, controled, 
or repressed ; but, in those of the popular form, it 
is seen in its greatest rankness, and is truly their 
worst enemy. — 

The alternate domination of one faction over an- 
other, sharpened by the spirit of revenge natural 
to party dissension, which in different ages and 
countries has perpetrated the most horrid enormi- 
ties, is itself a frightful despotism. — But this leads 
at length to a more formal and permanent despotism. 

— The disorders and miseries, which result, gradu- 
ally incline the minds of men to seek security and 

"The Man repose in the absolute power of an Individual; and 

9^ ?"?,^^^" sooner or later the chief of some prevailing faction, 

more able or more fortunate than his competitors, 

turns this disposition to the purposes of his own 

elevation, on the ruins of Public Liberty. 

Without looking forward to an extremity of this 
kind, (which nevertheless ought not to be entirely 
out of sight), the common and continual mischiefs 



1796] TEXT 297 

of the spirit of Party are sufficient to make it the 
interest and duty of a wise People to discourage 
and restrain it* — 

It serves always to distract the Public Councils, 
and enfeeble the Public Administration. — It agi- 
tates the community with ill founded jealousies and 
false alarms, kindles the animosity of one part 
against another, foments occasionally riot and in- 
surrection. — It opens the doors to foreign influence 
and corruption, which find a facilitated access to the 
Government itself through the channels of party pas- 
sions. Thus the policy and the will of one country 
are subjected to the policy and will of another. 

There is an opinion that parties in free countries 
are useful checks upon the Administration of the 
Government, and serve to keep alive the Spirit of 
Liberty. — This within certain limits is probably 
true ; and in Governments of a Monarchical cast, 
Patriotism may look with indulgence, if not with 
favour, upon the spirit of party. — But in those of 
the popular character, in Governments purely elec- 
tive, it is a spirit not to be encouraged. — From their 
natural tendency, it is certain there will always be 
enough of that spirit for every salutary purpose, 
— and, there being constant danger of excess, the 
effort ought to be, by force of public opinion, to 
mitigate and assuage it. — A fire not to be quenched ; 
it demands a uniform vigilance to prevent its burst- 
ing into a flame, lest, instead of warming, it should 
consume. 

It is important, likewise, that the habits of think- 
ing in a free country should inspire caution in those 
intrusted with its administration, to confine them- 
selves within their respective constitutional spheres ; 
avoiding in the exercise of the powers of one de- 
partment to encroach upon another. — The spirit of ' 
encroachment tends to consolidate the powers of all 
the departments in one, and thus to create, what- 
ever the form of government, a real despotism. A 



298 



WASHINGTON'S FAREWELL [Ch. XVID 



Compare 
the Mormon 
question. 
Roberts' case 
in 1900. 



just estimate of that love of power, and proneness 
to abuse it, which predominates in the human heart, 
is sufficient to satisfy us of the truth of this posi- 
tion. The necessity of reciprocal checks in the 
exercise of political power, by dividing and distrib- 
uting it into different depositories, and constituting 
each the Guardian of the Public Weal against inva- 
sions by the others, has been evinced by experi- 
ments ancient and modern ; some of them in our 
country and under our own eyes. — To preserve 
them must be as necessary as to institute them. 
If in the opinion of the People, the distribution or 
modification of the Constitutional powers be in any 
particular wrong, let it be corrected by an amend- 
ment in the way which the Constitution designates. 
— But let there be no change by usurpation ; for, 
though this, in one instance, may be the instrument 
of good, it is the customary weapon b}' which free 
governments are destroyed. The precedent must 
always greatly overbalance in permanent evil any 
partial or transient benefit, which the use can at 
any time yield. — 

Of all the dispositions and habits, which lead to 
political prosperity. Religion and morality are in- 
dispensable supports. — In vain would that man 
claim the tribute of Patriotism, who should labour 
to subvert these great Pillars of human happiness, 
these firmest props of the duties of Men and Citi- 
zens. The mere Politician, equally with the pious 
man, ought to respect and to cherish them. — A vol- 
ume could not trace all their connexions with pri- 
vate and public felicity. Let it simply be asked, 
Where is the security for property, for reputation, 
for life, if the sense of religious obligation desert the 
oaths, which are the instruments of investigation in 
Courts of Justice? And let us with caution indulge 
the supposition, that morality can be maintained 
without religion. — ■ Whatever may be conceded to 
the influence of refined education on minds of pecu- 



1796] TEXT 299 

liar structure — reason and experience both forbid 
us to expect, that national morality can prevail in 
exclusion of religious principle. — 

'T is substantially true, that virtue or naorality is 
a necessary spring of popular government. — The 
rule, indeed, extends with more or less force to 
every species of Free Government. — Who, that is a 
sincere friend to it, can look with indifference upon 
attempts to shake the foundation of the fabric? — 

Promote, then, as an object of primary impor- 
tance, institutions for the general diffusion of 
knowledge. In proportion as the structure of a 
government gives force to public opinion, it is es- 
sential that public opinion should be enlightened. — 

As a very important source of strength and se- Compare dis- 
curity, cherish public credit. — One method of pre- frJe^^'^]!! ^^ 
serving it is, to use it as sparingly as possible : — standard for 
avoiding occasions of expense by cultivating peace, ^^^ p^iblic 
but remembering also that timely disbursements to cially for 
prepare for danger frequently prevent much greater foreign 
disbursements to repel it ; avoiding likewise the ac- ^ ^^^^• 
cumulation of debt, not only by shunning occasions 
of expense, but by vigorous exertions in time of 
Peace to discharge the debts, which unavoidable 
wars may have occasioned, not ungenerously throw- 
ing upon posterity the burthen, which we ourselves Debt extin- 
ought to bear. The execution of these maxims be- fcql^^^ ^"^ 
longs to your Representatives, but it is necessary 
that public opinion should cooperate. — To facilitate 
to them the performance of their duty, it is essen- 
tial that you should practically bear in mind, that 
towards the payment of debts there must be Rev- 
enue — that to have Revenue there must be taxes 
— that no taxes can be devised which are not more Taxation 
or less inconvenient and unpleasant — that the i"f* ^^ prop- 

6rlv 6X6- 

intrinsic embarrassment, inseparable from the se- cuted com- 
lection of the proper objects (which is always a pare "Con- 
choice of difficulties) ought to be a decisive motive chartarum " 
for a candid construction of the conduct of the 1297. 



300 WASHINGTON'S FAREWELL [Ch. XVIII 

Grovernment in making it, and for a spirit of acqui- 
escence in the measures for obtaining revenue, which 
the public exigencies may at any time dictate. — 

Observe good faith and justice towards all Na- 
tions. Cultivate peace and harmony with all. — Re- 
ligion and Morality enjoin this conduct ; and can it 
be, that good policy does not equally enjoin it ? — It 
will be worthy of a free, enlightened, and, at no 
distant period, a great Nation, to give to mankind 
the magnanimous and too novel example of a People 
alwa^^s guided by an exalted justice and benevo- 
lence. — Who can doubt that, in the course of time 
and things, the fruits of such a plan would richly 
repay any temporary advantages, which might be 
lost by a steady adherence to it? Can it be, that 
Providence has not connected the permanent felicity 
of a Nation with its Virtue? The experiment, at 
least, is recommended by every sentiment which 
ennobles human nature. Alas ! is it rendered im- 
possible by its vices? 

In the execution of such a plan, nothing is more 
essential, than that permanent, inveterate antipa- 
thies against particular Nations, and passionate at- 
tachments for others, should be excluded; and that, 
in place of them, just and amicable feelings towards 
all should be cultivated. The Nation, which in- 
dulges towards another an habitual hatred, or an 
habitual fondness, is in some degree a slave. It is 
a slave to its animosity or to its affection, either of 
which is sufficient to lead it astray from its duty 
and its interest. — Antipathy in one nation against 
another disposes each more readily to offer insult 
and injury, to lay hold of slight causes of umbrage, 
and to be haughty and intractable, when accidental 
or trifling occasions of dispute occur. Hence fre- 
quent collisions, obstinate, envenomed and bloody 
contests. The Nation, prompted by ill-will and re- 
sentment, sometimes impels to War the Govern- 
ment, contrary to the best calculations of policy. — 



1796] TEXT 301 

The Government sometimes participates in the na- 
tional propensity, and adopts through passion what 
reason would reject ; — at other times, it makes the 
animosity of the Nation subservient to projects of 
hostility instigated by pride, ambition, and other 
sinister and pernicious motives. — The peace often, 
sometimes perhaps the Liberty, of Nations has 
been the Adctim. — 

So likewise, a passionate attachment of one French alli- 

Nation for another produces a variety of evils. — ance. Later, 

Democ- 
Sympathy for the favourite Nation, facilitating the racy" under 

illusion of an imaginary common interest, in cases Genet's influ- 
where no real common interest exists, and infusing ^°^^^- 
into one the enmities of the other, betrays the 
former into a participation in the quarrels and wars 
of the latter, without adequate inducement or jus- 
tification : It leads also to concessions to the fa- 
vourite Nation of privileges denied to others, which 
is apt doubly to injure the Nation making the con- 
cessions ; by unnecessarily parting with what ought 
to have been retained ; and by exciting jealousy, 
ill-will, and a disposition to retaliate, in the parties 
from whom equal privileges are withheld. And it 
gives to ambitious, corrupted, or deluded citizens, 
(who devote themselves to the favoured Nation) fa- 
cility to betray or sacrifice the interests of their 
own countr}^ without odium, sometimes even with 
popularity ; gilding, with the appearances of a virtu- 
ous sense of obligation, a commendable deference 
for public opinion, or a laudable zeal for public 
good, the base of foolish compliances of ambition, 
corruption, or infatuation. — 

As avenues to foreign influence in innumerable Question of 
ways, such attachments are particularly alarming ^y^^""® " -^^" 
to the truly enlightened and independent Patriot. — alliance." 
How many opportunities do they afford to tamper 
with domestic factions, to practise the arts of se- 
duction, to mislead public opinion, to influence or 
awe the public Councils ! Such an attachment of 



302 WASHINGTON'S FAREWELL [Ch. XVIH 

a small or weak, towards a great and powerful nation, 
dooms the former to be the satellite of the latter. 

Against the insidious wiles of foreign influence, 
I conjure you to believe me, fellow-citizens, the 
jealousy of a free people ought to be constantly 
awake ; since history and experience prove, that 
foreign influence is one of the most baneful foes of 
Republican Grovernment. — But that jealousy, to be 
useful, must be impartial ; else it becomes the in- 
strument of the very influence to be avoided, instead 
of a defence against it. — Excessive partiality for 
one foreign nation, and excessive dislike of another, 
cause those whom they actuate to see danger only 
on one side, and serve to veil and even second the 
arts of influence on the other. — Real Patriots, who 
may resist the intrigues of the favourite, are liable to 
become suspected and odious; while its tools and 
dupes usurp the applause and confidence of the 
people, to surrender their interests. — 

The great rule of conduct for us, in regard to 
foreign Nations, is, in extending our commercial 
relations, to have with them as little Political con- 
nexion as possible. — So far as we have already 
formed engagements, let them be fulfilled with per- 
fect good faith. — Here let us stop. — 

Europe has a set of primary interests, which to 
us have none, or a very remote relation. — Hence 
she must be engaged in frequent controversies, the 
causes of which are essentially foreign to our con- 
cerns. — Hence, therefore, it must be unwise in us 
to implicate ourselves, by artificial ties in the ordi- 
nary vicissitudes of her politics, or the ordinary 
combinations and collisions of her friendships or 
enmities. 
Germ of Our detached and distant situation invites and 

Monroe Doc- enables us to pursue a different course. If we re- 
main one People, under an efficient government, 
the period is not far off, when we may defy mate- 
rial injury from external annoyance ; when we may 



1796] TEXT 303 

take such an attitude as will cause the neutrality, 
we may at anytime resolve upon, to be scrupulously 
respected; when belligerent nations, under the im- 
possibility of making acquisitions upon us, will not 
likely hazard the giving us provocation ; when we 
may choose peace or war, as our interest, guided by 
justice, shall counsel. 

Why forego the advantages of so peculiar a situ- 
ation? — Why quit our own to stand upon foreign 
ground ? — Why, by interweaving our destiny with 
that of any part of Europe, entangle our peace and 
prosperity in the toils of European ambition, rival- 
ship, interest, humour, or caprice ? — 

It is our true policy to steer clear of permanent 
alliances with any portion of the foreign world ; — so 
far, I mean, as we are now at liberty to do it ; — for 
let me not be understood as capable of patronizing 
infidelity to existing engagements. (I hold the 
maxim no less applicable to public than to private 
affairs, that honesty is always the best policy.) I 
repeat it, therefore, let those engagements be ob- 
served in their genuine sense. — But, in my opinion, 
it is unnecessary and would be unwise to extend 
them. — 

Taking care always to keep ourselves, by suitable 
establishments, on a respectably defensive posture, 
we may safely trust to temporary alliances for ex- 
traordinary emergencies. — 

Harmony, liberal intercourse with all nations, are 
recommended by policy, humanity, and interest. 
But even our commercial policy should hold an equal 
and impartial hand ; — neither seeking nor grant- 
ing exclusive favours or preferences; — consulting "Keci- 
the natural course of things ; — diffusing and diversi- procity." 
fying by gentle means the streams of commerce, 
but forcing notliing ; establishing, — with Powers s 
disposed, — in order to give trade a stable course, 
to define the rights of our Merchants, and to enable 
the government to support them, — conventional rules 



304 WASHINGTON'S FAREWELL [Ch. XVIII 

of intercourse, the best that present circumstances 
and mutual opinion will permit, but temporary, and 
liable to be from time to time abandoned or varied, 
as experience and circumstances shall dictate ; con- 
stantly keeping in view, that it is folly in one nation 
to look for disinterested favours from another ; — that 
it must pay with a portion of its independence for 
whatever it may accept under that character ; — that, 
by such acceptance, it may place itself in the con- 
dition of having given equivalents for nominal 
favours, and yet of being reproached with ingratitude 
for not giving more. — There can be no greater error 
than to expect or calculate upon real favours from 
Nation to Nation. It is an illusion, which expe- 
rience must cure, which a just pride ought to dis- 
card. 
His benedic- In offering to you, my Countrymen, these counsels 
tions, politi- ^^ ^^ ^^^ ^^^ affectionate friend, I dare not hope 
national. they will make the strong and lasting impression I 
could wish, — that they will control the usual cur- 
rent of the passions, or prevent our Nation from 
running the course, which has hitherto marked the 
destiny of nations. — But, if I may even flatter my- 
self, that they may be productive of some partial 
benefit, some occasional good ; that they may now 
and then recur to moderate the fury of party spirit, 
to warn against the mischiefs of foreign intrigue, to 
guard against the impostures of pretended patriot- 
ism ; this hope will be a full recompense for the 
solicitude for your welfare, by which they have been 
dictated. — 

How far in the discharge of my official duties, I 
have been guided by the principles which have been 
delineated, the public Records and other evidences 
of my conduct must witness to You and to the 
world. — To myself, the assurance of my own con- 
science is, that I have at least believed myself to be 
guided by them. 

In relating to the still subsisting war in Europe, 



1796] TEXT 305 

my Proclamation of the 22d of April, 1793, is the 
index to my Plan. — Sanctioned by your approving 
voice, and by that of your Representatives in both 
Houses of Congress, the spirit of that measure has 
continually governed me : — uninfluenced by any at- 
tempts to deter or divert me from it. 

After deliberate examination, with the aid of the 
best lights I could obtain, I was well satisfied that 
our country, under all the circumstances of the case, 
had a right to take, and was bound in duty and in- 
terest to take, a Neutral position. — Having taken 
it, I determined, as far as should depend upon me, 
to maintain it, with moderation, perseverance, and 
firmness. — 

The considerations, which respect the right to 
hold this conduct, it is not necessary on this occa- 
sion to detail. I will only observe, that, according 
to my understanding of the matter, that right, so 
far from being denied by any of the Belligerent 
Powers, has been virtually admitted by all. — 

The duty of holding a neutral conduct may be 
inferred, without anything more, from the obliga- 
tion which justice and humanity impose on every 
Nation, in cases in which it is free to act, to main- 
tain inviolate the relations of Peace and Amity 
towards other Nations. — 

The inducements of interest for observing that 
conduct will best be referred to your own reflections 
and experience. — With me, a predominant motive 
has been to endeavour to gain time to our country 
to settle and mature its yet recent institutions, and 
to progress without interruption to that degree of 
strength and consistency, which is necessary to 
give it, humanly speaking, the command of its own 
fortunes. 

Though, in reviewing the incidents of my Admin- 
istration, I am unconscious of intentional error — I 
am nevertheless too sensible of my defects not to 
think it probable that I may have committed many 

20 



306 WASHINGTON'S FAREWELL [Ch. XYIII 

errors. — Whatever they may be, I fervently beseech 
the Almighty to avert or mitigate the evils to which 
they may tend. — I shall also carry with me the hope, 
that my Country will never cease to view them with 
indulgence ; and that, after forty-five years of my 
life dedicated to its service with an upright zeal, the 
faults of incompetent abilities will be consigned to 
oblivion, as myself must soon be to the mansions of 
rest. 

Relying on its kindness in this as in other things, 
and actuated by that fervent love towards it, which 
is so natural to a man, who views in it the native 
soil of himself and his progenitors for several gen- 
erations; — I anticipate with pleasing expectation 
that retreat, in which I promise myself to realize, 
without alloy, the sweet enjoyment of partaking, in 
the midst' of my fellow-citizens, the benign influence 
of good Laws under a free Government, — the ever 
favourite object of my heart, and the happy reward, 
as I trust, of our mutual cares, labours, and dangers. 

George Washington. 
Gazette of the United States, September 17th, 1796. 

CONTEMPORARY EXPOSITION 

SEWALL (1799) 

His address to the people of America, on his retiring from 
the cares of government, is one of the most invaluable legacies 
ever left to a people. It has been celebrated in Europe, and 
compared to that bequeathed by Moses to the nation of Israel. 
. . . Let this be our oracle ; let us read and study it day and 
night. In the language of inspiration, " Let us bind it about 
our necks, and engrave it on the tablet of our hearts." In this 
invaluable gift, among a variety of other excellent precepts, 
suffer me to remind you of a few. He most affectionately 
cautions his countrymen against all immoderate attachments to 
some, and violent antipathies against other nations. He rec- 
ommends harmony and liberal intercourse with all, at the same 
time that he deprecates too close a connection with any. He 



1796-1800] CONTEMPORARY EXPOSITION 307 

exhorts to obedience and submission to government, and a gen- 
erous confidence in our rulers, whom we ourselves have chosen ; 
while he warns against all combinations, whether open or covert, 
that tend to weaken government, or to lessen the authority of 
those who administer it. He inculcates the practice of justice, 
good faith, temperance and economy, with all the moral vir- 
tues ; and of religion emphatically, as the basis and foundation 
of them all. He exhorts us to the utmost of our power, to 
cultivate peace with every nation on earth ; and as the surest 
means to preserve it, strongly urges the necessity of maintain- 
ing the best state of defence in our power, both by sea and 
land. But, above all, he exhorts to union among ourselves — 
between States and among individuals. On this, he assures us, 
our prosperity, nay, our very existence as a nation depends. Is 
the counsel good? Let us follow it. Are these admonitions 
wise? We will obe}^ them. Thus shall we best prove the sin- 
cerity of our gratitude to their author, and fully evidence our 
veneration for his memory. But if we disregard and disobey 
them, what are we but hypocrites, or self-deceivers? Obedi- 
ence will lead us to the highest pinnacle of national glory. A 
contrary conduct will dishonour, though it cannot injure our 
greatest benefactor, and end in irremediable ruin. " If we are 
wise, we shall be wise for ourselves, but if we scorn, we alone 
shall bear it." 

Jonathan Mitchell Sewall, in Eulogies and Orations on Washington. 
35, 42. 

PAINE (1800) 

The invaluable valediction, bequeathed to the people, who 
inherited his affections, is the effort of a mind, whose powers, 
like those of prophecy, could overleap the tardy progress of 
human reason, and unfold truth without the labour of investiga- 
tion. Impressed in indelible characters, this Legacy of His In- 
telligence will descend, unsullied as its purity, to the wonder 
and instruction of succeeding genei-ations ; and, should the mild 
philosophy of its maxims be ingrafted into the policy of nations, 
at no distant period will the departed hero, who now lives only 
in the spotless splendour of his own great actions, exist in the 
happiness and dignity of mankind. 

Thomas Paine, in Eulogies and Orations on Washington. 65. 



308 WASHINGTON'S FAREWELL [Ch. XVIII 

BLTTH (1800) 

Before the expiration of his last presidential term, he gave 
us his paternal advice, which, if duly attended to, will forever 
preserve to us the inheritance of freedom. Let us pursue this 
advice, and never depart from it ; it is addressed to us all ; it is 
addressed to every American, " Let the union of the States" 
said our deceased Washington, "and the reciprocity of inter- 
ests be the groundwork of your political existence ; let the illib- 
eral spirit of party be banished forever from among you ; let 
just and amicable feelings, devoid of all partialities and antipa- 
thies, regulate your conduct with all nations ; guard against the 
interference of foreign nations in your internal concerns." In 
this advice, our Washington still lives ; in this bequest of the 
father of our country, to the whole American people, our Wash- 
ington will forever live, in the hearts and minds of all patriots 
over the whole globe ; and his venerable name will descend with 
unfading glory, down the perpetual succession of time, through 
ages of ages. 

Joseph Blyth, in Eulogies and Orations on Washington. 211. 

MASON (1800) 

Having lavished all her honours, his country had nothing 
more to bestow upon him except her blessing. But he had 
more to bestow upon his country. His views and his advice, 
the condensed wisdom of all his reflection, observation and ex- 
perience, he delivers to his compatriots in a manual worthy 
of them to study, and of him to compose. 

John M. Mason, in Eulogies and Orations on Washington. 239. 
MINOT (1800) 

The dangers of the Commonwealth having subsided at the close 
of his second administration, he felt himself justified, after dedi- 
cating forty-five years of his valuable life to her service, in with- 
drawing to receive with resignation the great change of nature, 
which his age and his toils demonstrated to be near. When he 
declined your future suffrages, he left you a legacy. What! 
like Caesar's to the Romans, money for your sports? Like 



1800-1859] CRITICAL COMMENT 309 

Attalus's, a kingdom for your tyranny ? No ; he left you not 
such baubles, nor for such purposes. He left you the records 
of wisdom for your government; a mirror for the faithful 
representation to your own view, of yourselves, your weak- 
nesses, your advantages, your dangers: a magnet which points 
to the secret mines and windings of party spirit, faction, foreign 
influence : a pillar to the unity of your republic : a band to in- 
close, conciliate and strengthen the whole of your wonderful 
and almost boundless communities. Read, preserve the sacred 
deposit ; and lest posterity should forget the truth of its maxims, 
engrave them on his tomb, that they may read them when they 
weep before it. 

George R. Minot, in Eulogies and Orations on Washington. 24. 

CRITICAL COMMENT 

SPARKS (1837) 

There is not an idea or sentiment in the Farewell Address, 
which may not be found, more or less extended, in dif- 
ferent parts of Washington's writings; nor, after such a 
perusal, can any one doubt his ability to compose such a 
paper. As a mere literary performance, though excellent, 
it is neither extraordinary, nor in any degree superior to 
many others known to be written by each of the parties. It 
would add little to the great reputation of "Washington, or of 
Hamilton, if the one or the other could be proved to be its sole 
and unaided author. It derives its value, and is destined to 
immortality, and chiefly from the circumstance of its containing 
wise, pure, and noble sentiments, sanctioned by the name of 
Washington at the moment when he was retiring from a long 
public career, in which he had been devoted to the service of 
his country with a disinterestedness, self-sacrifice, persever- 
ance, and success, commanding the admiration and applause of 

mankind. 

Jared Sparks, George Washington. XII. 396. 

BINNEY (1859) 

Washington was undoubtedly the original designer of the 
Farewell Address ; and not merely by general or indefinite in- 



310 WASHINGTON'S FAREWELL [Ch. XVIII 

timation, but by the suggestion of perfectly definite subjects, 
of an end or object, and of a general outline, the same which 
the paper now exhibits. . . . By derivation from himself, the 
Farewell Address speaks the very mind of Washington. The 
fundamental thoughts and principles were his ; but he was 
not the composer or writer of the paper. Hamilton was, in 
the prevalent literary sense, the composer and writer of the 
paper. . . . 

The main trunk was Washington's ; the branches were stimu- 
lated by Hamilton ; and the foliage, which was not exuberant 
was altogether his. . . . 

We might, though not with full and exact propriety, allot the 
soul to Washington, and the spirit to Hamilton. The elemen- 
tary body is Washington's, also ; but Hamilton has developed 
and fashioned it, and he has symmetrically formed and arranged 
the members to give combined and appropriate action to the 
whole. 

Horace Binnet, hiquiry into the Formation of Washington's Farewell 
Address. 171. 

OLNEY (1900) 

It has heretofore been considered that anything like an 
alliance between the United States and an European Power, 
for any purpose or any time, was something not to be thought 
of. To give a thing a bad name, however undeservedly, is to 
do much to discredit it, and there is no doubt that the epithet 
" entangling " — almost invariably applied — has contributed 
largely to make ''alliance" popularly and politically odious. 
Yet there may be " alliances " which are not " entangling" but 
wholly advantageous, and without the French alliance, Amer- 
ican independence, if not prevented, might have been long post- 
poned. It has been a prevalent notion that Washington was 
inimical to all alliances as such and left on record a solemn 
warning to his countrymen against them. Yet Washington 
clearly discriminated between alliances that would entangle 
and those that would not, and between alliances that were 
permanent and those that were temporary. Justly construed, 
Washington's utterances are as wise to-day as when they were 
made, and are no more applicable to the United States than to 



1859-1900] CRITICAL COMMENT 311 

any other nation. It must be the policy of every State to avoid 
alliances that entangle, while temporary and limited are better 
than general and permanent alliances because friends and part- 
ners should be chosen in view of actually existing exigencies 
rather than in reliance upon doubtful forecasts of the uncertain 
future. Nevertheless, up to this time the theory and practice of 
the United States have been against all alliances peremptorily. 

Richard Olnet, Growth of our Foreign Policy in The Atlantic Monthly, 
March, 1900. 



312 FEDERAL POWERS [Ch. XIX 



Chapter XIX 
THE EXTENT OF FEDERAL POWERS (1819) 

SUGGESTIONS 

This report of tlie famous Supreme Court decision in the McCulloch 
vs. Maryland Case bears date 1819. Of the decisions made by the 
Supreme Court in the early part of the century this is the most typi- 
cal, as setting forth the construction of the powers of the Federal 
government by the courts. 

The decision has a place among the documents of Anglo-Saxon 
liberty because it shows the American theory of limitations, and the 
extent of the power of the nation to legislate in questions which in- 
clude individual rights; and the doctrine here stated has ever since 
been the foundation of American national government. 

The exposition and comments which follow give an opportunity for 
acquaintance with the opinions of the ablest constitutional expounders. 

For Outlines and Material, see Appendix B, § 5. 

DOCUMENT 

Decision in the Case of M'Culloch vs. the State of Maryland. 

(iSig) 

United States "Writ of error from the court of appeals of 
Supreme Maryland. 

Court Re- -' r^ -r it -. , 

ports, 4 Marshall, u. J., delivered the opinion of the 

Wheaton, 400- court. 
437 The ex- 
tract is only ^^^ ^^® ^^^® ^^w to be determined, the defendant, 
a small part a sovereign State, denies the obligation of a law 
Cpi^ion!^^^ enacted by the legislature of the Union ; and the 

plaintiff, on his part, contests the validity of an 
the issue. act which has been passed by the legislature of 

that State. The constitution of our country, in its 

most interesting and vital parts, is to be considered ; 

the conflicting powers of the government of the 



1819] 



TEXT 313 



union and of its members, as marked in that con- 
stitution, are to be discussed ; and an opinion given, 
which may essentially influence the great operations 
of the government. No tribunal can approach 
such a question without a deep sense of its impor- 
tance, and of the awful responsibility involved in 
its decision. But it must be decided peacefully, or 
remain a source of hostile legislation, perhaps of 
hostility of a still more serious nature ; and if it is 
to be so decided, by this tribunal alone can the de- 
cision be made. On the supreme court of the 
United States has the constitution of our country 
devolved this important duty. . . . 

Among the enumerated powers, we do not find The omitted 
that of establishing a bank or creating a corpora- ^f^l'*^^]^'^' 
tion. But there is no phrase in the instrument phrase: 

which, like the articles of confederation, excludes "Thisgov- 
. - . , . , . , 11-1 • ernment is 

incidental or implied powers ; and which requires acknow- 

that everything granted shall be expressly and ledged to be 

minutely described. Even the 10th amendment, ^erated^"' 

which was framed for the purpose of quieting the powers." 

excessive jealousies which had been excited, omits 

the word " expressly," and declares only that the . 

powers "not delegated to the United States, nor (^^^f^ Ij" 

prohibited to the States, are reserved to the States 

or to the people ; " thus leaving the question, whether See Con- 

the particular power which may become the subject stitution, 

of contest, has been delegated to the one govern- ment x. 

ment, or prohibited to the other, to depend on a 

fair construction of the whole instrument. . . . 

We admit, as all must admit, that the powers of bern,^say^s^^^ 

the government are limited, and that its limits are the Court, 

not to be transcended. But we think the sound impossible to 

. . enumerate 

construction of the constitution must allow to the all the de- 
national legislature that discretion, with respect to ^^ils, unless 
,, "u -u- i^ ^\^ -1. £ XI, the Constitu- 

the means by which the powers it confers are to be ^jq^ should 

carried into execution, which will enable that body "partake of 
to perform the high duties assigned to it, in the *f a^e^af^*^ 
manner most beneficial to the people. Let the end code."* 



314 FEDERAL POWERS [Ch. XIX 

Since the be legitimate, let it be within the scope of the con- 
government stitution, and all means which are appropriate, 
do an act it which are plainly adapted to that end, which are 
stiould be al- not prohibited, but consist with the letter and spirit 
lect^the*^ ^^' ^^ ^^^^ constitution, are constitutional. . . . 
means. ... In the Legislature of the Union alone, are 

Taxation ^^^ represented. The legislature of the Union alone, 
especially therefore, can be trusted by the people with the 
finnatio ^^" power of controlling measures which concern all, 
Chartarum," in the confidence that it will not be abused. This, 

has been a then, is not a case of confidence, and we must con- 
right of the ' . ' 
people. sider it as it really is. 

If we apply the principle for which the state of 
Maryland contends, to the constitution generally, 
we shall find it capable of changing totally the char- 
acter of that instrument. We shall find it capable 
of arresting all the measures of the government, 
and of prostrating it at the foot of the States. The 
American people have declared their constitution, 
and the laws made in pursuance thereof, to be su- 
preme ; but this principle would transfer the su- 
premacy, in fact, to the States. 

^ , ^, . , If the States may tax one instrument, employed 

In both Arts. , , -: , • j. -^ 

of Confed., by the government m the execution oi its powers, 

vi., and the they may tax any and every instrument. They 
Constitution, , ,, -i ,, j. ^i • j. ^i 

U. S. Art. i. ^^y ^^^ ^'^® Toaail ; they may tax the mint ; they 

Sect. 10, the may tax patent rights ; they may tax the papers 

niedTo the ^^ ^^^® custom-house ; they may tax judicial process ; 

several States they may tax all the means employed by the govern- 

are clearly ment, to an excess which would defeat all the ends 

f^'mnnPT's.rpri 

of government. This was not intended by the 
American people. They did not design to make 
their government dependent on the States. 

Gentlemen say, they do not claim the right to 
extend state taxation to these objects. They limit 
their pretensions to property. But on what princi- 
ple is this distinction made? Those who make it 
have furnished no reason for it, and the principle 
for which they contend denies it. They contend 



1819] TEXT 315 

that the power of taxation has no other limit than 
is found in the lOtli section of the 1st article of 
the constitution; that, with respect to everything 
else, the power of the States is supreme, and admits 
of no control. If this be true, the distinction be- 
tween property and other subjects to which the 
power of taxation is applicable, is merely arbi- 
trary, and can never be sustained. This is not all. 
If the controlling power of the States be estab- State sov- 
lished ; if their supremacy as to taxation be ac- ereignty had 
knowledged ; what is to restrain their exercising cry of the 
this control in any shape the}' may please to give Jeffersonian 
it? Their sovereignty is not confined to taxation, ^^^ g^^^^^ 
That is not the only mode in which it might be dis- the outset. 
played. The question is, in truth, a question of 
supremacy; and if the right of the States to tax 
the means employed by the general government be 
conceded, the declaration that the constitution, and 
the laws made in pursuance thereof, shall be the Note the 

supreme law of the land, is empty and unmeaning Nullification 
, 1 ,. controversy 

declamation. . . . of 1832-33. 

The court has bestowed on this subject its most 
deliberate consideration. The result is a convic- 
tion that the States have no power, by taxation or 
otherwise, to retard, impede, burden, or in any 
manner control, the operations of the constitutional 
laws enacted by Congress to carry into execution 
the powers vested in the general government. This <C>- ' 
is, we think, the unavoidable consequence of that 
supremacy which the constitution has declared. 

We are unanimously of opinion, that the law 

passed by the legislature of Maryland, imposing 

a tax on the Bank of the United States, is un- 

,., ,. , , . T Actual state 

constitutional and void. ria;hts are not 

This opinion does not deprive the States of any limited or in- 

resources which they originally possessed. It does i""tiris "deci- 

not extend to a tax paid by the real property of sion, but 

the bank, in common with the other real property *^^y ^J®. 

• , • , r, • -. ^1 • defined m 

Within the State, nor to a tax imposed on the in- extent. 



316 



FEDERAL POWERS 



[Ch. XIX 



Not the first 
instance of 
quashing a 
state law by 
Federal 
Courts. 



terests which the citizens of Maryland may hold in 
this institution, in common with other property of 
the same description throughout the State. But 
this is a tax on the operations of the bank, and is, 
consequently, a tax on the operation of an instru- 
ment employed by the government of the Union to 
carry its powers into execution. Such a tax must 
be unconstitutional. 

. . . On consideration whereof, it is the opinion 
of this court, that the act of the legislature of 
Maryland is contrary to the Constitution of the 
United States, and void. ... It is therefore ad- 
judged and ordered, that the said judgment of the 
said court of appeals of the State of Maryland, in 
this case, be, and the same hereby is, reversed and 
annulled. And this court, proceeding to render 
such judgment as the said court of appeals should 
have rendered, it is further adjudged and ordered, 
that the judgment of the said Baltimore county 
court be reversed and annulled, and that judgment 
be entered in the said Baltimore county court for 
the said James W. M'Culloch. 



CONTEMPORARY EXPOSITION 



JSILES' REGISTER (1819) 

Having so long entertained such opinions as incontrover- 
tible truths, and as a weak, but honest apostle in the cause of 
mankind, endeavoured to impress them upon all within our 
reach, the horror of an apprehension that we have deceived 
ourselves and others, may be better felt than described : it is 
like to a man discovering the infidelity of his wife whilst she 
reposes on his bosom, and heart seems united to heart! A 
deadly blow has been struck at the sovereignty of the states, 
and from a quarter so far removed from the people as to be 
hardly accessible to public opinion — it is needless to say that 
we allude to the decision of the supreme court, in the case of 
McCulloch versus the State of Maryland, by which it is estab- 



1819] CONTEMPORARY EXPOSITION 317 

lished that the states cannot tax the bank of the United 
States. . . . 

But we believe that the broad question is settled, for the 
National Intelligencer of Monday last, giving an account of 
the proceedings of the supreme court on Saturday, says — " Mr. 
chief justice Marshall delivered the unanimous opinion of the 
court in the case of McCulloch against the state of Maryland. 

" 1st. That congress had, constitutionally, a right to estab- 
lish the banks of the United States. 

" 2dly. That the bank has authority to establish branches in 
such states of the Union as it thinks fit. 

" 3dly. That the state of Maryland has no right to tax the 
branch of the bank established in that state." 

We are awfully impressed with a conviction that the welfare 
of the union has received a more dangerous wound than fifty 
Hartford conventions, hateful as that assemblage was, could 
infiict — reaching so close to the vitals as seemingly to draw 
the heart's blood of liberty and safety, and which may be 
wielded to destroy the whole revenues, and so do away the 
sovereignties of the states. In the progress of this principle, 
we can easily anticipate the time when some daring scoundrel, 
having fortified himself by soul-trading incorporations, may 
seize upon these fair countries for a kingdom, and, surrounded 
with obedient judges and lying priests, punish his opponents, 
after the manner of European despots, with fines, imprison- 
ment and tortures here, and the terrors of the lower world 
hereafter. But we will not despair of the republic, nor yet 
give up the ship ; no alternative, however, is left to preserve 
the sovereignty of the states but by amending the constitution 
of the United States, and more clearly defining the original 
intentions of that instrument in several respects, but espe- 
cially in regard to incorporations : — these are evidences of sov- 
ereignty ; congress has not a sovereign power, except in the 
cases specially delegated. 

Hezekiah Nilbs, in Niks' " Weekly Register." XVI. 43. 
FREEMAN'S JOURNAL (1819) 

" The book! " Something is still said in Philadelphia about 
the book found in the office of the Bank of the United States 



318 FEDERAL POWERS [Ch. XIX 

at Baltimore. It is probable, that the eminent appellation of 
this thing will be lost, by finding three or four similar books at 
other places ! We have good reason to believe that attempts 
have been made to rival Baltimore in — speculation ! . . . 

" City Bank of Baltimore." The board of directors elected 
since the " blow up " of this bank, have, at length, appointed a 
day for laying a statement of the affairs of the institution be- 
fore the stockholders — viz., the 20th of October next. This 
distant date, after so long a delay, has excited no little sur- 
prise ; but we are told by those we have a right to believe, that 
the books and accounts of this bank were in such a state of 
confusion, that an earlier period could not be fixed upon, 
though the new cashier and clerks, (well skilled in accounts) 
had laboured and were yet labouring excessively, to ascertain 
the true state of the bank ! ! ! 

The stock of this bank is quoted by the brokers at $7 for 
15 paid. . . . 

" Bad Times ! " Honesty has fled from the world, and Sin- 
cerity is fallen asleep — Piety has hidden herself, and Justice 
cannot find the way — the Helper is not at home, and Charity 
lies sick ; Benevolence is under arrest, and Faith is nearly ex- 
tinguished ; the Virtues go a begging, and Truth has long since 
been buried ; Credit has turned crazy, and Conscience is nailed 
on the wall. 

Quoted in Niks' " Weekbj Register.'" XVI. 421. 

CRITICAL COMMENT 

STORY (1833) 

It is true that among the enumerated powers we do not find 
that of establishing a bank, or creating a corporation. But we 
do find there the great powers to levy and collect taxes : to 
borrow money : to regulate commerce : to declare and conduct 
war : and to raise and support armies and navies. Now, if a 
bank be a fit means to execute any or all of these powers, it is 
just as much implied, as any other means. ... In the present 
times it can hardly require argument to prove that it is a con- 
venient, a useful and an essential instrument in the fiscal ope- 
rations of the government of the United States. This is so 



1819-1896] CRITICAL COMMENT 319 

generally admitted by sound and intelligent statesmen that it 
would be a waste of time to endeavour to establish the truth by 
an elaborate survey of the mode in which it touches the ad- 
ministration of all the various branches of the powers of the 
Government. 

Joseph Story, Commentaries on the Constitution of the United States. 
448. 

HARE (1889) 

The case of McCuUoch v. The State of Maryland is entirely 
consonant with the course of judicial decision, and so much in 
harmony with that of legislature that if the doctrine which it 
established were overthrown a large and essential part of the 
legislation of Congress would fall with it. That the Bank of 
the United States was twice incorporated by men belonging to 
different parties, and viewing the Constitution in different as- 
pects ; that its constitutionality was never assailed success- 
fully, and was sustained on the only occasion when the question 
was brought into court ; that it finally fell, not in consequence 
of a denial of the implied power of Congress to incorporate a 
bank, . . . but because the president thought that some of the 
details of the bill presented for his signature were objection- 
able and exceeded the limits of the executive power — would be 
enough to prove, if proof were needed, that the principles vin- 
dicated by Chief-Justice Marshall are deeply rooted in the 
Constitution, and cannot be disturbed without destroying its 
usefulness. 

John Inness C. Hare, American Constitutional Law. I. 107. 

WILLOUGHBY (1890) 

The case of McCulloch v. Maryland arose from the attempt 
on the part of Maryland to prevent the operation, within her 
borders, of the federal institution, the Second United States 
Bank. This she endeavoured to do by taxing out of existence 
the branch bank which had been located on her territory. 

Wesxel "W. Willoughby, Supreme Court of the United States. 59. 

W. G. SUMNER (1896) 

February 11th, 1818, Maryland laid a stamp tax on notes of 
any bank doing business in the State and not by or with the 



320 FEDERAL POWERS [Ch. XIX 

authority of the same. . . . The Bank of the United States 
paid no heed to this law. In the case at law which resulted 
(McCulloch V. Maryland), the tax was held to be unconstitu- 
tional by the Supreme Court of the United States. It was held 
that the Bank was constitutionally endowed with a right to 
establish branches in any State. These branches were not tax- 
able by the State, but real estate, owned by the Bank, or the 
proprietary interest of citizens of the State in it, might be taxed 
like other property : Congress has power to charter a national 
bank as one means of carrying on the fiscal operation of the 
national government; the States cannot by taxation impede 
Congress in the exercise of any of its constitutional powers; if 
the end is legitimate and within the scope of the constitution, 
any means may be employed which are appropriate and not 
prohibited. 

William Gkaham Sumner, History of Banking in the United States. 
I. 100. 



1823] MONROE DOCTRINE— TEXT 821 

Chapter XX 
LIBERTIES OF OTHER AMERICAN PEOPLES (1823) 

SUGGESTIONS 

This document contains such portions of President Monroe's Message 
to Congi-ess, Dec. 2, 1823, as bore upon the subject of international 
relationship. The President called the attention of Congress to the 
aggressive schemes of Russia, and the probable policy of the Holy 
Alliance. This memorable doctrine bears the name of the President, 
because of its place in his annual message ; but the principles set 
forth therein are the embodiment of the thought of great American 
statesmen from the beginning of the nation. The spirit of " hands 
off," no " entangling alliances " and " remote situation " can be traced 
throughout the writings and speeches of such diplomatists as Pownall, 
Jefferson, Washington, Adams, and John Quincy Adams. The 
■writers upon foreign relationships since 1823 have examined the tenets 
of this document with great interest. Its power and influence have 
guided European as well as American thought. 

Before presenting the subject of the Monroe Doctrine to students, a 
certain amount of European history must be reviewed so that an in- 
telligent understanding may be had of the bases of the principles set 
forth ; Napoleon's aggrandizement, the faU of the great master of the 
French empire, the restoration of Louis XVIII. to the throne of 
France ; Spain's colonies and their growing spirit of independence ; 
Russia's aggTession on the Pacific slope ; the Holy Alliance with its 
conservative belief in monarchical government ; the attitude of Great 
Britain towards the alliance and hence towards the United States, — 
some knowledge of these questions is absolutely necessary before the 
document can be appreciated, and before the contemporaneous ex- 
position can illuminate its text. 

For Outlines and Material, see Appendix B, § 6. 

DOCUMENT 

The Monroe Doctrine (1823) 
Embodied in President Monroe's Message at the J. D. Rich- 

COMMENCEMENT OF THE FiRST SESSION OF THE 7 ^°ii*^/-fi™" 

pilation oj the 

Eighteenth Congress, December 2, 1823. Messages and 

PdTOSVS of ths 

At the proposal of the Russian Imperial Govern- presidents. 
ment, made through the minister of the Emiperor H- 209, 219. 

21 



322 



MONROE DOCTRINE 



[Ch. XX 



The dispute 
as to terri- 
tory in the 
northwest 
was settled 
by a separate 
convention 
between the 
United 
States and 
Eussia, 
signed at St. 
Petersburg, 
April 5-17, 
1824. 

This prin- 
ciple declares 
that no new 
European 
colonial es- 
tablishments 
shall be 
allowed on 
territory 
hitherto un- 
occupied. 
See Wash- 
ington's 
Farewell 
Address. 



Since 1823 
there have 
been no ex- 
tensions of 
European 
political sys- 



residing here, a full power and instructions have 
been transmitted to the minister of the United 
States at St. Petersburg to arrange by amicable 
negotiation the respective rights and interests of 
the two nations on the northwest coast of this con- 
tinent. ... In the discussions to which this interest 
has given rise and in the arrangements by which they 
may terminate, the occasion has been judged pi'oper 
for asserting, as a principle in which the rights and 
interests of the United States are involved, that the 
Atnerican continents, by the free and independent 
condition which they have assumed and maintain, 
are henceforth not to be considered as subjects for 
future colouization by any European powers. . . . 
The citizens of the United States cherish senti- 
ments the most friendly in favour of the liberty and 
happiness of their fellow-raen on that side of the 
Atlantic. In the wars of the European powers in 
matters relating to themselves we have never taken 
any part, nor does it comport with our policy so to do. 
It is only when our rights are invaded or seriously 
menaced that we resent injuries or make prepara- 
tion for our defense. With the movements in this 
hemisphere we are of necessity more immediately 
connected, and by causes which must be obvious to 
all enlightened and impartial observers. The politi- 
cal system of the allied powers is essentially differ- 
ent in this respect from that of America. This 
difference proceeds from that which exists in their 
respective Governments ; and to the defense of our 
own, which has been achieved by the loss of so much 
blood and treasure, and matured by the wisdom of 
their most enlightened citizens, and under which 
we have enjoyed unexampled felicity, this whole 
nation is devoted. We owe it, therefore, to candour 
and to the amicable relations existing between the 
United States and those powers to declare that we 
should consider any attempt on their part to extend 
their system to any portion of this hemisphere as 



18-23-1826] CONTEMPORARY EXPOSITION 323 

dangerous to our peace and safety. With the exist- terns to any 
ing colonies or dependencies of any European power ^j^jg j^gj^i. 
we have not interfered and shall not interfere. But sphere ex- 
with the Governments who have declared their in- F^i.en*^*^in. 
dependence and maintained it, and whose indepen- vasion of 
dence we have, on great consideration and on just ^^^^z.^' 
principles, acknowledged, we could not view any 
interposition for the purpose of oppressing them, 
or controlling iu any other manner their destiny, 
by any European power in any other light than as 
the manifestation of an unfriendly disposition to- 
wards the United States. . . . 

Our policy in regard to Europe, which was adopted 
at an early stage of the wars which have so long non-inter- 
agitated that quarter of the globe, nevertheless re- vention in 
mains the same, which is, not to interfere in the offlh-s^^'^ 
internal concerns of any of its powers ; to consider 
the government de facto as the legitimate govern- 
ment for us ; to cultivate friendly relations with it, 
and to preserve those relations by a frank, firm, 
and manly policy, meeting in all instances the just 
claims of every power, submitting to injuries from 
none. But in regard to those continents circum- 
stances are eminently and conspicuously different. 
It is impossible that the allied powers should extend interposition 
their political system to any portion of either con- in tlie affairs 
tinent without endangering our peace and happiness; i^sli-Ame^-i^can 
nor can anyone believe that our southern brethren, Republics. 
if left to themselves, would adopt it of their own 
accord. It is equally impossible, therefore, that we 
should behold such interposition in any form, with 
indifference. 



CONTEMPORARY EXPOSITION 

JOHN QUrsrCT ADAMS (1823) 

15th (1823). I received a note from Mr. D. Brent, saying 
that the President wished to see me at the office at noon. I 
went and found him there. He asked for the correspondence 



324 MONROE DOCTRINE [Ch. XX 

relating to the intercourse with the British American colonies, 
with a view to the particular notice which he intends to take of 
it in the message ; which I thought should have been only in 
general terms. He also showed me two letters which he had 
received — one from Mr. Jefferson, 23d October, and one from 
Mr. Madison of 30th October, giving their opinions on the 
proposals of Mr. Canning. The President had sent them the 
two dispatches from R. Rush of 23d and 28th August, enclos- 
ing the correspondence between Canning and. him, and requested 
their opinions on the proposals. Mr. Jefferson thinks them 
more important than anything that has happened since our 
Revolution. He is for acceding to the proposals, with a view 
to pledging Great Britain against the Holy Allies ; though he 
thinks the island of Cuba would be a valuable and important 
acquisition to our Union. Mr. Madison's opinions are less de- 
cisively pronounced, and he thinks, as I do, that this move- 
ment on the part of Great Britain is impelled more by her 
interest than by a principle of general liberty. . . . 

21st. I mentioned also my wish to prepare a paper to be 
delivered confidentially to Baron Tuyl, and the substance of 
which I would in the first instance express to him in a verbal 
conference. It w^ould refer to the verbal communications re- 
cently made by him, and to the sentiments and dispositions 
manifested in the extract of a dispatch relating to Spanish 
affairs which he lately put into my hands. My purpose would 
be in a moderate and conciliatory manner, but with a firm and 
determined spirit, to declare our dissent from the principles 
avowed in those communications ; to assert those upon which 
our own Government is founded, and, while disclaiming all 
intention of attempting to propagate them by force, and all 
interference with the political affairs of Europe, to declare our 
expectation and hope that the European powers will equally 
abstain from the attempt to spread their principles in the 
American hemisphere, or to subjugate by force any part of 
these continents to their will. . . . 

4th. I went to the President's and found Gales, the half-editor 
of the National Intelligencer, there. He said the message was 
called a war message; and spoke of newspaper paragraphs 
from Europe announcing that an army of twelve thousand 



1823] CONTEMPORARY EXPOSITION 325 

Spaniards was to embark immediately to subdue South Amer- 
ica. I told him there was absurdity on the face of these 
paragraphs, as the same newspapers announced with more 
authenticity the disbanding of the Spanish army. The Presi- 
dent himself is singularly disturbed with these rumours of in- 
vasion by the Holy Alliance. 

C. F. Adams, editor, Memoirs of John Quincy Adams. VI. 185, 194, 226, 

JEFFERSON (1823) 

To THE President 

MoNTiCELLO, October 24, 1823. 
Dear Sir, — The question presented by the letters you have 
sent me, is the most momentous which has ever been offered to 
my contemplation since that of Independence. That made us 
a nation, this sets our compass and points the course which we 
are to steer through the ocean of time opening on us. And 
never could we embark on it under circumstances more au- 
spicious. Our first and fundamental maxim should be, never 
to entangle ourselves in the broils of Europe. Our second, 
never to suffer Europe to intermeddle with cis- Atlantic affairs. 
America, North and South, has a set of interests distinct from 
those of Europe, and peculiarly her own. She should therefore 
have a system of her own, separate and apart from that of 
Europe. While the last is labouring to become the domicil of 
despotism, our endeavour should surely be, to make our hemi- 
sphere that of freedom. One nation, most of all, could dis- 
turb us in this pursuit ; she now offers to lead, aid, and accom- 
pany us in it. By acceding to her proposition, we detach her 
from the bands, bring her mighty weight into the scale of free 
government, and emancipate a continent at one stroke, which 
might otherwise linger long in doubt and difficulty. Great 
Britain is the nation which can do us the most harm of any 
one, of all on earth ; and with her on our side we need not fear 
the whole world. With her then, we should most sedulously 
cherish a cordial friendship ; and nothing would tend more to 
knit our affections than to be fighting once more, side by side, 
in the same cause. Not that I would purchase even her amity 
at the price of taking part in her wars. But the war in which 



326 MONROE DOCTRINE [Ch. XX 

the present proposition might engage us, should that be its 
consequence, is not her war, but ours. Its object is to intro- 
duce and establish the American system, of keeping out of our 
land all foreign powers, of never permitting those of Europe 
to intermeddle with the affairs of our nations. It is to maintain 
our own iDrinciple, not to depart from it. . . . 

I have been so long weaned from political subjects, and have 
so long ceased to take any interest in them, that I am sensible 
I am not qualified to offer opinions on them worthy of any 
attention. But the question now proposed involves conse- 
quences so lasting, and effects so decisive of our future des- 
tinies, as to rekindle all the interest I have heretofore felt on 
such occasions, and to induce me to the hazard of opinions, 
which will prove only my Wish to contribute still my mite 
towards anything which may be useful to our country. And 
praying you to accept it at only what it is worth, I add the 
assurance of my constant and affectionate friendship and 

respect. 

Thomas Jefferson, Complete Works. VII. 315, 317. 

MADISON (1823) 

To President Monroe 

Oct. 30, 1823. 
D^ Sir, — I have just received from Mr. Jefferson your let- 
ter to him, with the correspondence between Mr. Canning and 
Mr. Rush, sent for his and my perusal, and our opinions on the 
subject of it. . . . The professions we have made to these 
neighbours, our sympathies with their liberties and independ- 
ence, the deep interest we have in the most friendly relations 
with them, and the consequences threatened by a command of 
their resources by the Great Powers, confederated against the 
rights and reforms of which we have given so conspicuous and 
persuasive an example, all unite in calling for our efforts to 
defeat the meditated crusade. 

To Richard Rush 

MoNTPELiER, Nov. 13, 1823. 
D^ Sir, — I have received your favour of September 10. 
. . . Whatever may be the motives or the management of the 
British Government, I cannot pause on the question whether 



1823-1826] CONTEMPORARY EXPOSITION 327 

we ought to join her in defeating the efforts of the Holy Alli- 
ance to restore our Independent neighbours to the condition of 
Spanish Provinces. Our principles and our sympathies; the 
stand we have taken in their behalf ; the deep interest we have 
in friendly relations with them ; and even our security against 
the Great Powers, who, having conspired against national 
rights and reforms, must point their most envenomed wrath 
against the United States, who have given the most formidable 
example of them ; all concur in enjoining on us a prompt ac- 
ceptance of the invitation to a communion of counsels, and, if 
necessar}^, of arms, in so righteous and glorious a cause. 

James Madison, Works. III. 339, 345. 

WEBSTER (1826) 

Now, Sir, it did so happen, that, as soon as the Spanish king 
was completely reestablished, he invited the cooperation of 
his allies, in regard to South America. In the same month of 
December, of 1823, a formal invitation was addressed by Spain 
to the courts of St. Petersburg, Vienna, Berlin, and Paris, pro- 
posing to establish a conference at Paris, in order that the 
plenipotentiaries there assembled might aid Spain in adjusting 
the affairs of her revolted provinces. . . . 

The proposed meeting, however, did not take place. Eng- 
land had already taken a decided course ; for as early as 
October, Mr. Canning, in a conference with the French min- 
ister in London, informed him distinctly and expressly, that 
England would consider any foreign interference, \)y force or 
by menace, in the dispute between Spain and the colonies, as a 
motive for recognizing the latter without delay. It is probable 
this determination of the English government was known here 
at the commencement of the session of Congress ; and it was 
under these circumstances, it was in this crisis, that Mr. Mon- 
roe's declaration was made. It was not then ascertained whether 
a meeting of the allies would or would not take place, to con- 
cert with Spain the means of reestablishing her power; but it 
was plain enough they would be pressed by Spain to aid her 
operations ; and it was plain enough, also, that they had no 
particular liking to what was taking place on this side of the 
Atlantic, nor any great disinclination to interfere. This was 
the posture of affairs ; and. Sir, I concur entirely in the senti- 



328 MONROE DOCTRINE [Ch. XX 

meet expressed in the resolution of a gentleman from Pennsyl- 
vania, that this declaration of Mr. Monroe was wise, seasonable, 
and patriotic. 

It has been said, in the course of this debate, to have been 
a loose and vague declaration. It was, I believe, sufficiently 
studied. I have understood, from good authority, that it was 
considered, weighed, and distinctly and decidedly approved, by 
every one of the President's advisers at that time. Our gov- 
ernment could not adopt on that occasion precisely the course 
which England had taken. England threatened the immediate 
recognition of the provinces, if the Allies should take part with 
Spain against them. We had already recognized them. It 
remained, therefore, only for our government to say how we 
should consider a combination of the Allied Powers, to effect 
objects in America, as affecting ourselves ; and the message 
was intended to say, what it does say, that we should regard 
such combination as dangerous to us. Sir, I agree with those 
who maintain the proposition, and I contend against those who 
deny it, that the message did mean something ; that it meant 
much ; and I maintain, against both, that the declaration 
effected much good, answered the end designed by it, did great 
honour to the foresight and the spirit of the government, and 
that it cannot now be taken back, retracted, or annulled, with- 
out disgrace. It met. Sir, with the entire concurrence and the 
hearty approbation of the country. The tone which it uttered 
found a corresponding response in the breasts of the free people 
of the United States. That people saw, and they rejoiced to 
see, that, on a fit occasion, our weight had been thrown into 
the right scale, and that, without departing fi'om our duty, we 
had done something useful, and something effectual, for the 
cause of civil liberty. One general glow of exultation, one 
universal feeling of the gratified love of liberty, one conscious 
and proud perception of the consideration which the country 
possessed, and of the respect and honour which belonged to it, 
pervaded all bosoms. Possibly the public enthusiasm went too 
far ; it certainly did go far. But, Sir, the sentiment which this 
declaration inspired was not confined to ourselves. Its force 
was felt everywhere, by all those who could understand its 
object and foresee its effect. 

Daniel Webster, Worhs. III. 202, 203. 



1826-1875] CRITICAL COMMENT 329 



CRITICAL COMMENT 

DANA (1866) 

It is to be borne in mind that the Declarations known as the 
Monroe Doctrine have never received the sanction of an act or 
resolution of Congress : nor have they any of that authority 
which European governments attach to a royal ordinance. 
They are, in fact, only the declarations of an existing adminis- 
tration of what its own policy would be, and what it thinks 
should ever be the policy of the country, on a subject of para- 
mount and permanent interest. . . . 

Confining itself to a declaration against interposition to op- 
press or control, or to extend the system of the Iloly Alliance 
to this hemisphere, the message avoids committing the govern- 
ment on the subject of acquisition, either by the United States 
or the European powers, and whether by voluntary cession or 
conquest. ... In further explanation of the Monroe Doctrine 
it is to be noticed that it is correctly called a doctrine and no 
more. There is no intimation what the United States will do 
in case of European interposition, or what means it will take 
to prevent it. . . . And public opinion may be considered as 
settled on the point that the action of the nation, in any case 
that may arise, must be unembarrassed by pledge or compact : 
and, further, as equally settled, against the introduction of any- 
thing approaching the nature of a Holy Alliance for this conti- 
nent, though it be in the interests of republican institutions. 

Richard Henry Dana, Wheaton's Elements of International Law. 109- 
111. 

VON H0LST(1875) 

In August, 1823, Rush learned from Canning that the Holy 
Alliance was beginning to seriously think of interfering in colo- 
nial affairs in favour of Spain. England's position on the ques- 
tion had meanwhile substantially changed. If Castlereagh had 
been willing in 1818 to make the return of the colonies under 
Spanish dominion the basis of the attempt at intervention, 
Wellington had by this time used very different language at 
the congress of Verona, and now Canning declared himself 
ready to act in direct opposition to the plans of the Holy AUi- 



330 MONROE DOCTRINE [Ch. XX 

ance, provided he were assured of the co-operation of the 
United States. Rush at once forwarded these statements of 
Canning to his government, which received them with "great 
satisfaction," for, as Calhouu, the then secretary of war, after- 
wards declared, the power of the Alliance was so great that the 
United States themselves had not felt safe from its intermed- 
dling. Monroe sent the records concerning the matter to all 
the members of his cabinet, and at the same time asked Jef- 
ferson for his opinion. The latter answered that "America, 
North and South," as a result of its own peculiar interests, 
should also have a peculiar political system, founded on free- 
dom. It should be a leading principle of the United States 
"never to suffer Europe to intermeddle with cis-Atlantic 
affairs." For the attainment of these ends the offered help of 
England should be accepted, even at the risk of a war. The 
cabinet, after long and careful consideration, came to the 
same opinion. Almost at the very moment when Spain for- 
mally invited the allied powers to a conference in Paris, the 
president announced in his annual message of Dec. 1, 1823, the 
so-called Monroe doctrine. 

Hermann E. von Holst, The Constitutional History of the United States. 
419, 420. 

MORSE (1882) 

The doctrine. which has been christened with the name of 
President Monroe, seems likely to win for him the permanent 
glory of having originated the wise policy which that familiar 
phrase now signifies. . . . Not only is the " Monroe Doctrine " 
as that phrase is customarily construed in our day, much more 
comprehensive than the simple theory first expressed by Mon- 
roe and now included in the modern doctrine as a part in the 
whole, but a principle more fully identical with the imperial one 
of to-day had been conceived and shaped by Mr. Adams before 
the delivery of Monroe's famous message. . . . When discus- 
sion arose with Russia concerning her possessions on the north- 
west coast of this continent, Mr. Adams audaciously told the 
Russian minister. Baron Tuyl, July 17, 1823, "that we should 
contest the rights of Russia to any territorial establishment on 
this continent, and that we should assume distinctly the prin- 



1875-1883] CRITICAL COMMENT 331 

ciple that the American continents are no longer subjects for 
any new European colonial establishments." " This," says Mr. 
Charles Francis Adams in a foot-note to the passage in the 
Diary, " is the first hint of the policy so well known afterwards 
as the Monroe Doctrine." ... In a word, Mr. Adams, by his 
language and actions, established and developed precisely that 
doctrine which has since been adopted by this country under the 
doubly incorrect name of the "Monroe Doctrine," — a name 
doubly incorrect, because even the real "Monroe Doctrine" was 
not an original idea of Mr. Monroe, and because the doctrine 
which now goes by that name is not identical with the doctrine 
which Monroe did once declare. Mr. Adams's principle was 
simply that the United States would take no part whatsoever in 
foreign politics, not even in those of South America, save in the 
extreme event, eliminated from among things possible in this 
generation, of such an interference as was contemplated by the 
Holy Alliance ; and that, on the other hand, she would permit 
no European power to gain any new foothold upon this conti- 
nent. Time and experience have not enabled us to improve 
upon the principles which Mr. Adams worked out for us. 

John T. Morse, Jr., John Quincy Adams. 130-137. 

D. C. GILMAN (1883) 

It appears to me probable that Monroe had but little concep- 
tion of the lasting effect which his words would produce. He 
spoke what he believed and what he knew that others believed ; 
he spoke under provocation, and aware that his views might be 
controverted ; he spoke with authority after consultation with 
his cabinet, and his words were timely ; but I do not suppose 
that he regarded this announcement as his own. Indeed, if it 
had been his own decree or ukase it would have been resented 
at home quite as vigorously as it would have been opposed 
abroad. It was because he pronounced not only the opinion 
then prevalent, but a tradition of other days which had been 
gradually expanded, and to which the country was wonted, 
that his words carried with them the sanction of public law. A 
careful examination of the writings of the eai^lier statesmen of 
the Republic will illustrate the growth of the Monroe doctrine 
as an idea dimly entertained at first, but steadily developed by 



332 MONROE DOCTRINE [Ch. XX 

the course of public events and the reflection of those in public 
life. I have not made a thorough search, but some indications 
of the mode in which the doctrine was evolved have come under 
my eye which may hereafter be added to by a more persistent 
investigator. 

The idea of independence from foreign sovereignty was at 
the beginning of our national life. The term "continental" 
applied to the army, the congress, the currency, had made 
familiar the notion of continental independence. This kept 
in mind the notion of a continental domain. Moreover, in the 
writings, both public and private, of the fathers of the Repub- 
lic, we see how clearly they recognized the value of separation 
from European politics, and of repelling, as far as possible, 
European interference with American interests. 

Daniel C. Gilman, James Monroe. 161-162. 

SCHOULER (1885) 

This doctrine, so profound of import, was not, we apprehend, 
the sudden creation of individual thought, but the result rather 
of slow processes in our public mind, which had been constantly 
intent upon problems of self-government, and intensely obser- 
vant of our continental surroundings ; though carried forward, 
no doubt, like other ideas in the colonial epoch, by the energy 
and clearer conviction of statesmen who could foresee and link 
conceptions into a logical chain. Neutralit}'' as to European 
affairs, freedom from all entangling alliances with the old world, 
was the legacy of experience which Washington bequeathed to 
his successors. This might have seemed at first to discourage 
all external influence, and remit our Union to the selfish and 
isolated pursuit of its own interests. But the annexation of 
Louisiana proved that the Union itself was destined to expand 
over an uncertain area of this continent. And, when, inspired 
by our example, the Spanish colonies of the American continent 
were seen one after another to shake off the yoke of the parent 
country, and spontaneously assert their independence, the phil- 
anthropic leaders — and none among them so quickly or so 
persistently as Jefferson — began to predict the fraternal co- 
operation in the future of these free republics, all modelled 
alike, in a common scheme for self-preservation which should 



1883-1885] CRITICAL COMMENT 333 

shut out Europe, its rulers and its systems of monarchy forever 
from this hemisphere ; for by such means only could the germ 
of self-government expand, and the luxuriant growth of this 
hardy plant make it impossible that the monarchical idea should 
ever strike a deep root in American soil. . . . AVhen liberty 
struggled in America we were not — we could not be — neutral. 
The time of announcement and the choice of expression, never- 
theless, awaited events, ... It was the courage of a great 
people personified in a firm chief magistrate that put the fire 
into those few momentous though moderate sentences, and made 
them glow like the writing at Belshazzar's feast. . . . 

James Schoulee, History of the United States. III. 289-290. 
TUCKER (1885) 

The argument that the Monroe Doctrine can have no validity 
because it has never received legislative sanction, carries with 
it no weight. Many rules of international law impose an obli- 
gation derived from usage alone. The original declaration of 
Mr. Monroe is a precedent acknowledged by the American 
people, and to a certain extent acquiesced in by European 
authorities. Hardly a President since Mr. Monroe has omitted 
to refer to it in language of approval. It has always been 
regarded as a question independent of party politics, save per- 
haps in its application to the Congress at Panama. It has been 
persistently asserted by the majority of American statesmen ; 
and to declare that it cannot obtain as a universal obligation is 
practically to throw discredit upon Washington's farewell ad- 
dress, whose recommendations, though never embodied in stat- 
utes or approved by resolution of Congress, have frequently 
shaped the foreign and domestic policy of the government. . . . 
Finally, the Monroe Doctrine is to America what the Balance 
of Power is to Europe. The analogy may not be complete, be- 
cause several nations in Europe unite to preserve a ratio of 
power, while on this hemisphere the influence of the United 
States is paramount. But it is this feature which is especially 
worthy of note. 

George F. Tucker, The Monroe Doctrine. 130-131. 



334 MONROE DOCTRINE [Ch. XX 

PRESIDENT CLEVELAND (1895) 

Without attempting extended argument in reply to these po- 
sitions it may not be amiss to suggest that the doctrine upon 
which we stand is strong and sound because its enforcement is 
important to our peace and safety as a nation, and is essential to 
the integrity of our free institutions and the tranquil maintenance 
of our distinctive form of government. It was intended to 
apply to every stage of our national life, and cannot become 
obsolete while our Republic endui'es. If the balance of power 
is justly a cause for jealous anxiety among the governments of 
the old world, and a subject for our absolute non-interference, 
none the less is an observance of the Monroe Doctrine of vital 
concern to our people and their Government. 

Assuming, therefore, that we may properly insist upon this 
doctrine without regard to " the state of things in which we 
live," or any changed conditions here or elsewhei'e, it is not 
apparent why its application may not be invoked in the present 
controversy. 

If a European power, by an extension of its boundaries, 
takes possession of the territory of one of our neighbouring 
Republics against its will and in derogation of its rights, it is 
difficult to see why to that extent such European power does 
not thereby attempt to extend its sj'^stem of government to 
that portion of this continent which is thus taken. This is the 
precise action which President Monroe declared to be " dan- 
gerous to our peace and safety," and it can make no difference 
whether the European system is extended by an advance of 
frontier or otherwise. 

. . . The Monroe doctrine finds its recognition in those 
principles of international law which are based upon the theory 
that every nation shall have its rights protected and its just 
claims enforced. 

Grover Cleveland, Special Message, Dec. 17, 1895. 

OLNEY (1895) 

That there are circumstances under which a nation may 
justly interpose in a controversy to which two or more other 
nations are the direct and immediate parties is an admitted 
canon of iuteruational law. The doctrine is ordiaarily eX' 



1895] CRITICAL COMMENT 335 

pressed in terms of the most general character and is jDerhaps 
incapable of more specific statement. It is declared in sub- 
stance that a nation may avail itself of this right whenever 
what is done or proposed by any of the parties primarily con- 
cerned is a serious and direct menace to its own integrity, 
tranquillity, or welfare. The propriety of the rule when ap- 
plied in good faith will not be questioned in any quarter. On 
the other hand, it is an inevitable though unfortunate conse- 
quence of the wide scope of the rule that it has only too often 
been made a cloak for schemes of wanton spoliation and ag- 
grandizement. We are concerned at this time, however, not so 
much with the general rule as with a form of it which is pe- 
culiarly and distinctively American. Washington, in the solemn 
admonitions of the Farewell Address, explicitly warned his 
countrymen against entanglements with the politics or the con- 
troversies of European powers. . . . 

During the administration of President Monroe this doc- 
trine of the Farewell Address was first considered in all its 
aspects and with a view to all its practical consequences. 
The Farewell Address, while it took America out of the field 
of European politics, was silent as to the part Europe might 
be permitted to play in America. Doubtless it was thought 
the latest addition to the family of nations should not make 
haste to prescribe rules for the guidance of its older members, 
and the expediency and propriety of serving the powers of 
Europe with notice of a complete and distinctive American 
policy excluding them from interference with American politi- 
cal affairs might well seem dubious to a generation to whom 
the French alliance, with its manifold advantages to the cause 
of American independence, was fresh in mind. 

. . . The Monroe administration, however, did not content 
itself with formulating a correct rule for the regulation of the 
relations between Europe and America. It aimed at also se- 
curing the practical benefits to result from the application of 
the rule. Hence the message just quoted declared that the 
American continents were fully occupied and were not the 
subjects for future colonization by European powers. To this 
spirit and this purpose, also, are to be attributed the passages 
of the same message which treat any infringement of the rule 



336 MONROE DOCTRINE [Ch. XX 

against interference in American affairs on the part of the 
powers of Europe as an act of unfriendliness to the United 
States. It was realized that it was futile to lay down such 
a rule unless its observance could be enforced. It was mani- 
fest that the United States was the only power in this hemi- 
sphere capable of enforcing it. It was therefore courageously 
declared not merely that Europe ought not to interfere in 
American affairs, but that any European power doing so would 
be regarded as antagonizing the interests and inviting the op- 
position of the United States. 

Richard Olney, Letter to Mr, Bayard in Senate Executive Documents, 54 
Cong. 1 session. (No. 31.) 

WOOLSET (1896) 

But let us look at the real spirit and intent of the Monroe 
Doctrine. One hesitates to repeat its origin, so often has it 
been related. The allied powers had twice tried their hand at 
intervention — in Spain and in Naples. This intervention was 
in favor of absolutism, not of established government ; for in 
Naples a liberal movement was put down, in Spain a royalist 
insurrection was helped up. Emboldened by success, they 
then proposed to apply their new principles to this conti- 
nent, and to restore to Spain those colonies of hers which 
were trying to gain, or had gained, their independence. Then 
Monroe declared that such intervention would be regarded by 
the United States as dangerous to itself. He announced a 
policy. That policy forbade the substitution of monarchical for 
republican forms of government on this continent by European 
force. It did not forbid the existence of monarchies here, as 
Dom Pedro could testify. It did not forbid any step which 
the republics themselves chose to take, but simply what was 
forced upon them. It was the policy which fitted the hour 
and the occasion. It was opportunism. 

The Monroe Doctrine is not a law ; it binds us to no action ; . 
it was a policy devised to meet a particular case. That case 
was the forcible substitution of monarchical for republican forms 
of government in American States by European action. It was 
an act of self-defence, on no other grounds justifiable. It was 
not backed by threats of force. 

Theodoee S. Woolsey, Avierica''s Foreign Policy. 223-238. 



1895-1898] CRITICAL COMMENT 337 

McMASTER (1897) 

The Monroe Doctrine is a simple and plain statement that 
the people of the United States oppose the creation of European 
dominion on American soil ; that they oppose the transfer of 
the political sovereignty of American soil to European powers ; 
and that any attempt to do these things will be regarded as 
" dangerous to our peace and safety." What the remedy 
should be for such interposition by European powers the doc- 
trine does not pretend to state. But this much is certain : that 
when the people of the United States consider anything " dan- 
gerous to their peace and safety " they will do as other nations 
do, and, if necessary, defend their peace and safety with force 
of arms. 

The doctrine does not contemplate forcible intervention by 
the United States in any legitimate contest, but it will not per- 
mit any such contest to result in the increase of European 
power or influence on this continent, nor in the overthrow of 
an existing government, nor in the establishment of a protec- 
torate over them, nor in the exercise of any direct control over 
their policy or institutions. Further than this the doctrine does 
not go. 

John Bach McMaster, With the Fathers. 45. 

W. F. REDDAWAT (189S) 

In respect to the revolutionists of both hemispheres, then, 
the Monroe Doctrine is not in perfect harmony with the views 
of the President as previously expressed in public. It coin- 
cides, on the other hand, with the consistent teachings of 
Adams. Its keynote is the sharp political severance of Amer- 
ica from Europe. In the mouth of Monroe, who had been 
wont to sound the praise of liberty in Spain, Portugal, and 
Greece, this rings false. With the strains of Adams it is in 
perfect harmony. . . . During several years, then, Adams had 
steadily treated the supremacy of the United States on the 
continent of North America as an established fact, and the 
progress of events had caused him to declare their interest in 
the whole of the New World. The Monroe Doctrine, however, 
though it announces only that they cannot " behold with indif- 

29 



338 MONROE DOCTRINE [Ch. XX 

ference " the extension of the political system of the Allies to 
any portion of the continent, speaks with warmth of those 
whom it terms "our Southern brethren." In this respect it 
savours more of Monroe than of Adams. ... A single phrase, 
inserted perhaps by the President, or adopted by Adams as a 
harmless concession to the views of his colleagues, cannot of 
itself disprove his authority. . . . 

The logical conclusion seems to be that the conception of 
the Monroe Doctrine and much of its phraseology came from 
Adams, and that the share of Monroe did not extend beyond 
revision. . . . 

In insisting upon the right of every people to choose its own 
form of government without external interference, also, the 
declaration is affirming but not creating, the Law of Nations. 
The kernel of this part of the Monroe Doctrine then in its 
second form as in its first, is a vague declaration of policy and 
in no way a formulation of rules prevailing between states. . . . 
No line or paragraph of the Monroe Doctrine, therefore, repre- 
sents an addition to the body of rules prevailing between States. 
From the first word to the last, it is a declaration of the policy 
of a single power. ... 

In its latest development, then, as throughout its history, 
the Monroe Doctrine has induced confusion of thought. The 
flood of sentiment and rhetoric poured out on both sides of 
the Atlantic has in great part obscured the "truth. It has 
served, none the less, to establish the position of the Monroe 
Doctrine as a political force, which — however esteemed — 
must be recognized. Above all, by the Old World and the 
New, it must be understood. 

William riDDiAN Reddawat, Monroe Doctrine. 82-151. 

HART (1901) 

No one who knows the cautious and somewhat sluggish mind 
of Monroe could suppose a •priori that he had the genius to meet 
and counteract the double danger; the real author and probable 
penman of the famous declaration of 1823 was John Quincy 
Adams, then Secretary of State. He had already rapped the 
knuckles of the Russian ambassador on the Oregon question, 
and he threw all his immense energy into the task of nerving 



1898-1901] CRITICAL COMMENT 339 

up the President to a strong announcement. The result was 
the annual message of December 2, 1823, embodying what was 
thereafter called "The Monroe Doctrine," the essentials of 
which are three statements. 

... It will be seen that the Monroe doctrine was not in- 
tended by Monroe to be a code of international law, but was 
called out by a special set of circumstances long since outgrown 
— aggressions by Russia and by allied Europe. So far as it 
referred to the future, the doctrine was intended to state a 
kind of quid pro quo. 

. . . The extension of the term Monroe Doctrine from the 
limited form given it by John Quincy Adams to that stated by 
Secretary Olney has of course a reason : there is an apparent 
advantage, when the United States takes up a position in 
American diplomacy, in bringing it within the Monroe Doc- 
trine ; because it may then be urged that foreign powers which 
ignore or question our positions have had many decades of 
notice, and hence are sinning against light. But it is impos- 
sible to appeal to a part of the principle and to ignore the rest; 
and the history of the doctrine shows absolutely that down to 
1895 the United States always asserted a special American 
influence, on the ground that it left to European powers a similar 
special interest in Europe. This is simply a doctrine of the 
permanent subdivision of the earth into two spheres of influence, 
each of which could get on without the other, and in each of 
which the interference of the other would be unwarranted. 
There was really no such separation in 1823, and every year 
draws the ends of the earth closer together. To claim the 
Monroe Doctrine as still our guiding principle is to suggest 
to other nations that the United States has no power outside 
America. The two areas are not separate and never can be 
separated; the United States is a world power, and cannot 
claim the special privileges of a diplomatic recluse, and at the 
same time the mastery of the Western Hemisphere. 

Albert Bushnell Haet, The Monroe Doctrine, in Harper's Monthly, 
1901. 



340 EMANCIPATION [Ch. XXI 



Chapter XXI 
THE RIGHTS OF SLAVES AND OF THEIR RACE (1857) 

SUGGESTIONS 

The Dred Scott Decision was pronounced on the 6th of March, 1857. 
The following excerpts are chosen from the reports made by Chief- 
Justice Taney, and the dissenting opinion delivered by Justice 
Curtis. 

The interest which gathers about the question of slavery and its 
eventual death-blow has to this generation of students a purely historic 
bearing ; but that slavery did exist, and that it was possible for the 
Chief Justice of the Supi-eme Court to defend it in an official report, 
makes the study of one of the most famous decisions of the Court a 
necessary preparation for the later investigation of the enfranchise- 
ment of the coloured race. In examining the opinion of the Court, 
we are amazed that less than fifty years ago such conditions could 
have existed. To appreciate fully these discussions for and against 
the Dred Scott Decision, it is necessary to study into the Northern 
and Southern points of view, and to investigate the social condi- 
tions, and the moral energy which had their share in shaping the 
doctrines and politics of the respective leaders in this great issue. 

For Outlines and Analysis, see Appendix B, § 6. 



DOCUMENTS 

Extracts from the Opinion of the Court in the Dred Scott Decision, 
March 6th, 1857 

The text is Mr. Chief Justice Roger B. Taney delivered the 
*™°^ 19 How- opinion of the Court. 

ard, 399. ^^^ . , , . -,.,., 

Dred Scott, a This case has been twice argued. After the ar- 

slave born in gument at the last term, differences of opinion were 
havino- lived fo^^^cl to exist among the members of the Court ; 
north of the and as the questions in controversy are of the high- 



1857] TEXT 341 

est importance, and the Court was at that time Missouri line 
much pressed by the ordinary business of the term, ^.g 
it was deemed advisable to continue the case, and claimed his 
direct a re-argument on some of the points, in order ^ q^°™' 
that we might have an opportunity of giving to the Sandford, 
whole subiect a more deliberate consideration. It ^^^ had _ 

DGCOniG Ills 

has accordingly been again argued by counsel, and titular owner 

considered by the Court ; and I now proceed to after his re- 
■1 T ., . . turn south of 

deliver its opinion. ^^^ compro- 

There are two leading questions presented by the mise line. 

record: n^^ w a!- 

^ ^ , TT • T o Court of Mis- 

1. Had the Circuit Court of the United otates souri decided 
iurisdiction to hear and determine the case between i^ his favour. 
., .-0*1 The Supreme 
these parties? And Court of Mis- 

2. If it had jurisdiction, is the judgment it has souri re- 
given erroneous or not? ^ _ decision, and 

The plaintiff iu error, who was also the plaintiff remanded 
in the Court below, was, with his wife and children, ^^ ^^'^• 
held as slaves by the defendant, in the State of is53, Dred 
Missouri ; and he brought this action in the Circuit Scott entered 
Court of the United States for that district, to assert gandtord in 
the title of himself and his family to freedom. Circuit Court 

The declaration is in the form usually adopted in gtatifs^"^^^'^ 
that State to try questions of this description, and Sandford de- 
contains the averment necessary to give the Court ^i*^!^ ^}}^ 

iiirisclic- 
jurisdiction; that he and the defendant are citizens tion — but 

of different States ; that is, that he is a citizen of tl^ Court ^ 

Missouri, and the defendant a citizen of New York. ^^-^^ ^j^^^ ^^_ 

The defendant pleaded in abatement to the juris- cided against 

diction of the Court, that the plaintiff was not a ^nthe^round 

citizen of the State of Missouri, as alleged in his of the deci- 

declaration, being a negro of African descent, whose ^^i^^^l^^^^ 

ancestors were of pure African blood, and who were higher Court. 

brouo;ht into this country and sold as slaves. "^ ^^^^ ^^® 

.1 , . . T ^ , T case came up 

To this plea the plaintiff demurred, and the de- in the Su- 

fendant joined in demurrer. The Court overruled preme Court 

the plea, and gave judgment that the defendant grates to 

should answer over. And he therefore put in sun- which Dred 

dry pleas in bar, upon which issues were joined ; gnallv an- 



342 



EMANCIPATION 



[Ch. XXI 



pealed, and 
decision was 
rendered in 
March, 1857. 



Constitution, 
Art. iv. sect. 

2. 



Constitution, 
Art. iv. sect. 
2, §§ 1, 2, 3. 



and at the trial the verdict and judgment were in 
his favor. Whereupon the plaintiff brought this 
writ of error. 

Before we speak of the pleas in bar, it will be 
proper to dispose of the questions which have arisen 
on the plea in abatement. 

That plea denies the right of the plaintiff to sue 
in a court of the United States, for the reasons 
therein stated. 

If the question raised by it is legally before us, 
and the Court should be of opinion that the facts 
stated in it disqualify the plaintiff from becoming a 
citizen, in the sense in which that word is used in 
the Constitution of the United States, then the judg- 
ment of the Circuit Court is erroneous, and must be 
reversed. 

It is suggested, however, that this plea is not 
before us ; and that as the judgment in the Court 
below on this plea was in favor of the plaintiff, he 
does not seek to reverse it, or bring it before the 
Court for revision by his writ of error ; and also 
that the defendant waived this defence by pleading 
over, and thereby admitted the jurisdiction of the 
Court. . . . 

The words ' people of the United States ' and 
' citizens ' are synonymous terms, and mean the 
same thing. They both describe the political body 
who, according to our republican institutions, form 
the sovereignty, and who hold the power and con- 
duct the government through their representatives. 
They are what we familiarly call the ' sovereign 
people,' and every citizen is one of this people, 
and a constituent member of this sovereignty. The 
question before us is, whether the class of persons 
described in the plea in abatement compose a por- 
tion of this people, and are constituent members of 
this sovereignty? We think they are not, and that 
they are not included, and were not intended to be 
included, under the word ' citizen ' in the Consti- 



1857] TEXT 343 

tution, and can therefore claim none of the rights 
and privileges which that instrument provides for 
and secures to citizens of the United States. 

On the contrary, ih^y were at that time consid- 
ered as a subordinate and inferior class of beings, 
who had been subjugated by the dominant race, "Three fifths 

and, whether emancipated or not, yet remained ^^ other 

' . , ^ . 1,1 persons." 

subject to their authority, and had no rights or Constitution, 

privileges but such as those who held the power and ^^^- '• ^^^*'- 

the government might choose to grant them. ' ^ 

It is not the province of the Court to decide upon 
the justice or injustice, the policy or impolicy, of 
these laws. The decision of that question belonged 
to the political or law-making power ; to those who 
formed the sovereignty and framed the Constitution. 
The duty of the Court is, to interpret the instrument Constitution, 
they have framed, with the best lights we can obtain ^'"K"^" ^^^^' 
on the subject, and to administer it as we find it, 
according to its true intent and meaning when it 
was adopted. 

In discussing this question, we must not confound 

the rights of citizenship which a State may confer 

within its own limits, and the rights of citizenship 

as a member of the Union. It does not by any 

means follow, because he has all the rights and 

privileges of a citizen of a State, that he must be a Fourteenth 

citizen of the United States. He may have all of amendment 
-I . .1 ,. ji • • J? 1-1 to the Con- 

the rights and privileges or the citizen or a State stitution 

and yet not be entitled to the rights and privileges makes it so. 

of a citizen in any other State. For, previous to the 

adoption of the Constitution of the United States, 

every State had the undoubted right to confer on 

whomsoever it pleased the character of citizen, and 

to endow him with all its rights. But this charac- Articles of 

ter of course was confined to the boundaries of ^^ ^^^^^^ 

the State, and gave him no rights or privileges in 

other States beyond those secured to him by the 

laws of nations and the comity of States. 

No one, we presume, supposes that any change 



344 EMANCIPATION [Ch. XXI 

England in public opinion or feeling in relation to this unfor- 

abolished tunate race, in the civilized nations of Europe or in 

1833- the ^^is country, should induce the courts to give to the 

purchase- words of the Constitution a more liberal construc- 

bv^Great^^" tion in their favor than they were intended to bear 

Britain to when the instrument was framed and adopted. Such 

the slave- argument would be altogether inadmissible in any 

owners was ^ . ° . -, „ . 

20,000,000/. tribunal called on to mterpret it. If any of its 

provisions are deemed unjust, there is a mode pre- 
scribed in the instrument itself by which it may be 
amended ; but while it remains unaltered, it must 
be construed now as it was understood at the time 
Const. Art. v. of its adoption. It is not only the same in words 
but the same in meaning, and delegates the same 
power to the government and reserves and secures 
the same rights and privileges to the citizen ; and, 
as long as it continues to exist in its present form, 
it speaks not only with the same words, but with 
the same meaning and intent with which it spoke 
when it came from the hands of its framers, and 
was voted on and adopted by the people of the 
United States. Any other rule of construction 
would abrogate the judicial character of this Court, 
and make it the mere reflex of the popular opinion 
or passion of the day. This Court was not created 
by the Constitution for such purposes. Higher and 
graver trusts have been confided to it, and it must 
not falter in the path of duty. 
This dictum What the construction was at that time, we think 
fiiUyTnfuted ^^^ bardly admit of doubt. We have the language 
by George of the Declaration of Independence and of the 
Liyermore, Articles of Confederation, in addition to the plain 

JrL istovic(xi 

Research. words of the Constitution itself ; we have the legis- 

lation of the different States, before, about the 
time, and since, the Constitution was adopted ; we 
have the legislation of Congress, from the time of 
its adoption to a recent period ; and we have the 
constant and uniform action of the executive de- 
partment, all concurring together, and leading to 



1857] TEXT 345 

the same result. And if anything in relation to the 

construction of the Constitution can be regarded as 

settled, it is that which we now give to the word 

" citizen " and the word " people." 

And upon a full and careful consideration of the 

subject, the Court is of opinion, that, upon the 

facts stated in the plea in abatement, Dred Scott 

was not a citizen of Missouri within the meaning of 3?^^ '^,^'^'^1^°^ 
, „ . . J! , TT • 1 fi ^^^^ the Cir- 

the Constitution oi the United States, and not en- cuit Court 

titled as such to sue in its courts : and, consequeutlv, ^^.^'l."^ juris- 
., ^ ^, ^. -1. r^ i 1 • . T ,• ^ ," diction of 

that the Circuit Court has no jurisdiction of the the case was 

case, and that the judgment on the plea in abate- of course ad- 
. • verse to Dred 

ment is erroneous. . . . Scott 

Now, as we have already said in an earlier part 

of this opinion, upon a different point, the right of 

property in a slave is distinctly expressed and 

affirmed in the Constitution. The right to traffic 

in it, like an ordiuary article of merchandise and 

property, was guaranteed to the citizens of the 

United States, in every State that might desire it, 

for twenty years. And the government in express Const. Art. i. 

terms is pledged to protect it in all future time, if ^®^*'" ^' § ^• 

the slave escapes from his owner. This is done in 

Const Art 
plain words — too plain to be misunderstood. And jy_ ggg(- 2 

no word can be found in the Constitution which § 2. 
gives Congress a greater power over slave property, 
or which entitles property of that kind to less pro- 
tection than property of any other description. The 
only power conferred is the power coupled with the 
duty of guarding and protecting the owner in his 
rights. 

Upon these considerations, it is the opinion of 
the Court that the Act of Congress which prohibited 
a citizen from holding and owning property of this 
kind in the territory of the United States north of " Missouri 

the line therein mentioned, is not warranted by Compro- 

. ' "^ mise ' held 

the Constitution, and is therefore void; and that vmconstitu- 
neither Dred Scott himself, nor any of his family, tional. 
were made free by being carried into this terri- 



346 



EMANCIPATION 



[Ch. XXI 



tory; even if they had been carried there by the 
owner, with the intention of becoming a permanent 
resident. 



See Const. 
Art. iv. sect. 
2, Arts, of 
Confed., ii. 



Note Decla- 
ration of In- 
dependence. 



Extract from Justice Benjamin R. Curtis, dis- 
senting. 

I dissent from the opinion pronounced by the 
Chief Justice, and from the judgment which the 
majority of the court think it proper to render iu 
this case. . . . 

One mode of approaching this question is, to in- 
quire who were citizens of the United States at the 
time of the adoption of the Constitution. 

Citizens of the United States at the time of the 
adoption of the Constitution can have been no 
other than citizens of the United States under the 
Confederation. By the Articles of Confederation, 
a Government was organized, the style whereof 
was, ' The United States of America.' This Gov- 
ernment was in existence when the Constitution 
was framed and proposed for adoption, and was 
to be superseded by the new Government of the 
United States of America, organized under the Con- 
stitution. When, therefore, the Constitution speaks 
of citizenship of the United States, existing at the 
time of the adoption of the Constitution, it must 
necessarily refer to citizenship under the Govern- 
ment which existed prior to and at the time of such 
adoption. 

Without going into any question concerning the 
powers of the Confederation to govern the territory of 
the United States out of the limits of the States, and 
consequently to sustain the relation of Government 
and citizen in respect to the inhabitants of such ter- 
ritory, it may safely be said that the citizens of the 
several States were citizens of the United States 
under the Confederation. . . . 

Did the Constitution of the United States deprive 
them or their descendants of citizenship ? 



1857] TEXT 347 

That Constitution was ordained and established by 
the people of the United States, through the action, 
in each State, of those persons who were qualified Through the 
by its laws to act thereon, in behalf of themselves ratification 

■1 ,, , ■ • i- I n r ^ <^f the Con- 

and all other citizens of that State, in some of the stitution. 

States, as we have seen, colored persons were among 

those qualified by law to act on this subject. These Instanced by 

colored persons were not only included in the body ^-^^^^ Massa- 

of ' the people of the United States,' by whom the chusetts, 

Constitution was ordained and established, but in S^*^^ York, 

at least five of the States they had the power to act, and North ' 

and doubtless did act, by their suffrages, upon the Carolina, 

question of its adoption. It would be strange, if ^^gj-g ^f ^j^g" 

we were to find in that instrument anything which colored race 

deprived of their citizenship any part of the people ^^Iv citizens 

of the United States who were among those by but many of 

whom it was established. ^^p"^ ^f? *'^^ 

T r-T . .i/-(i-- !•! irancnise 

1 can find nothing in the Constitution which, of electors." 

proprio vigors, deprives of their citizenship any 
class of persons who were citizens of the United 
States at the time of its adoption, or who should 
be native-born citizens of any State after its adop- 
tion ; nor any power enabling Congress to disfran- 
chise persons born on the soil of any State, and 
entitled to citizenship of such State by its Constitu- 
tion and laws. And my opinion is, that, under the 
Constitution of the United States, every free per- 
son born on the soil of a State, who is a citizen of 
that State by force of its Constitution or laws, is 
also a citizen of the United States. 



The conclusions at which I have arrived on this 
part of the case are : 

First. That the free native-born citizens of each citizensbip. 
State are citizens of the United States. 

Second. That as free colored persons born within 
some of the States are citizens of those States, such zensbip. 
persons are also citizens of the United States. 



348 



EMANCIPATION 



[Ch. XXI 



Eights of 
citizenship. 



Tliis refers 
to the ground 
taken by 
Taney that 
all territory 
acquired 
after the 
year 1787 
was under 
the constitu- 
tional law 
of the coun- 
try. Hence, 
citizenship 
from the 
Federal Gov- 
ernment 
could not 
extend to 
the new 
territories. 

Louisiana 
Purchase. 



Third. That every such citizen, residing in any 
State, has the right to sue and is liable to be sued 
in the Federal courts, as a citizen of that State in 
which he resides. 

Fourth. That as the plea to the jurisdiction in 
this case shows no facts, except that the plaintiff 
was of African descent, and his ancestors were sold 
as slaves, and as these facts are not inconsistent 
with his citizenship of the United States, and his 
residence in the State of Missouri, the plea to the 
jurisdiction was bad, and the judgment of the Circuit 
Court overruling it was correct. 

I dissent, therefore, from that part of the opinion 
of the majority of the court, in which it is held that 
a person of African descent cannot be a citizen of 
the United States ; and I regret I must go further, 
and dissent both from what I deem their assumption 
of authority to examine the constitutionality of 
the act of Congress commonly called the Missouri 
Compromise act, and the grounds and conclusions 
announced in their opinion. 

I consider the assumption which lies at the basis 
of this theory to be unsound ; not in its just sense, 
and when properly understood, but in the sense 
which has been attached to it. That assumption 
is, that the territory ceded by France was acquired 
for the equal benefit of all the citizens of the United 
States. I agree to the position. But it was acquired 
for their benefit in their collective, not their individ- 
ual, capacities. It was acquired for their benefit, 
as an organized political society, subsisting as ' the 
people of the United States,' under the Constitu- 
tion of the United States ; to be administered 
justly and impartially, and as nearly as possible for 
the equal benefit of every individual citizen, accord- 
ing to the best judgment and discretion of the Con- 
gress ; to whose power, as the Legislature of the 
nation which acquired it, the people of the United 
States have committed its administration. 



1857] CONTEMPORARY EXPOSITION 349 

Nor in my judgment, will the position, that a pro- 
hibition to bring slaves into a Territory deprives any 
one of his property without due process of law, bear S^e Magna 
examination. 39_ 

It must be remembered that this restriction on See Con- 

the legislative power is not peculiar to the Constitu- ct^rtarum 

tion of the United States ; it was borrowed from Art. I. 

Magna Charta ; was brought to America by our "^f ^t^^^w*^? o 
ff 1 • . 1 . T Ti of Eight, § 2. 

ancestors, as part of their inherited liberties, and See Bill of 

has existed in all the States, usually in the very lights, Art. 

words of the great charter. 



CONTEMPORARY EXPOSITION 

BENTON (1857) 

From the day of becoming a landholder, the old Continental 
Congress first, and the Federal Congress since, have exercised 
the right of every other landholder to prevent trespasses, intru- 
sions, and settlements upon their territory, expelling with mili- 
tary force, and punishing with fine and damages, the violater of 
its rules. 

This began under the Confederation, and has continued ever 
since. All the old settlers on the frontiers can remember the 
dragooning the settlers on the United States territory, driving 
them off, and destroying their houses and growing crops. All 
can remember the old familiar operation of cutting up a Ter- 
ritory, running a line through it, giving one half to the Indians, 
and driving the white people from it, and their slaves also. 
Such is the power which Congress exercises over its territory, 
and with which the Constitution has nothing to do. 

To sum up, in a few words, the results of this Examination, 
and to present the conclusions under a single view, and it is 
shown that the Constitution was not made for Territories, and 
does not include them — that it cannot be extended to them by 
law, and if it could, would be barren and fruitless without law 
to put it into operation — that no law could be made under 
it to give any help to the slaveholder, either in recovering his 
propert}^, if the slave ran away, or in bringing back for justice 



350 EMANCIPATION [Ch. XXI 

the fugitive felon that should steal it; or in getting protec- 
tion from the Federal Government against revolt, or in that 
acknowledgment of property in the slave which results from his 
federal taxation. In no one of these cases, nor in any other 
one which can be imagined, can any law be made under the 
Constitution to help the slave-owner, for every provision in 
that instrument which relates to slavery is confined to States ; 
and the owner must be thrown upon the ordinance of 1787, 
and the power of Congress, independent of the Constitution, 
for every species of protection which he may need about that 
property. 

I have performed an unpleasant task, but unavoidable. I 
have been on the kindest personal terms with the judges, and 
in my long senatorial service, and as part of the appointing 
power, have cordially given my voice for the elevation of each 
of them to the honourable stations they hold — for every one 
except Mr. Justice Curtis, appointed since the termination of 
my service. I am a friend to the Supreme Court as an institu- 
tion — as a high and essential part of our system — and would 
not willingly derogate from its respect, or impair its utility. 
But the whole system, of which it is a part, and the whole 
people, of whom its members are a few, are overruling consid- 
erations ; and the evil of the late decision being actually upon 
us, going into parties, entering into elections, giving the rule 
for the appointment of all future federal judges, establishing a 
new party test, bringing the federal judiciary into the vortex of 
federal politics, and developing still more strongly the geogra- 
phical line which divides us ; seeing all these evils now upon us, 
and others to come, I have found it impossible to remain silent, 
or to have said less. I am among the last of those who, acting 
with the generations that are passed, still adhere to their teach- 
ings. I labour to preserve what they established, lamenting that 
the task had not fallen into abler hands. A few years earlier, 
and the preservation of the Missouri Compromise would have 
found its adequate defender in one of its greatest architects, 
and the integrity of the Constitution would have found its 
champion in its great expounder; but Clay and Webster are 
gone ; and, before them, went Pinckney and Lowndes, gloriously 
identified with the work which recent hands have just torn 



1857-1862] CONTEMPORARY EXPOSITION 351 

down. And of those who survive, and who stood by them in 
their great efforts, and still stand where they stood, I am one 
of the few — no longer in power, but still in armour when the 
works of our fathers are in danger. I write for no party, but 
for all men who venerate the works of our ancestors, and who 
wish to see our Government kept on the foundations on which 
they placed it. 

Thomas H. Benton, Examination of the Supreme Court's Decision in the 
Dred Scott Case. 128, 130. 

BANCROFT (1862) 

That ill-starred disquisition is the starting-point of this re- 
bellion, which, for a quarter of a century, had been vainly 
preparing to raise its head. " When courts of justice fail, war 
begins." The so-called opinion of Taney, who, I trust, did not 
intend to hang out the flag of disunion, that rash offence to the 
conscious memory of the millions, upheaved our country with 
the excitement which swept over those of us who vainly hoped 
to preserve a strong and sufficient though narrow isthmus that 
might stand between the conflicting floods. No nation can 
adopt that judgment as its rule, and live : the judgment has in 
it no element of political vitality. I will not say it is an invo- 
cation of the dead past : there never was a past that accepted 
such opinions. If we want the opinions received in the days 
when our Constitution was framed, we will not take them 
second-hand from our Chief-Justice : we will let the men of that 
day speak for themselves. How will our American magistrate 
sink, when arraigned, as he will be, before the tribunal of 
humanity ! How terrible will be the verdict against him, when 
he is put in comparison with Washington's political teacher, the 
great Montesquieu, the enlightened magistrate of France, in 
what are esteemed the worst days of her monarchy ! The argu- 
ment from the difference of race which Taney thrusts forward 
with passionate confidence, as a proof of complete disqualifica- 
tion, is brought forward by Montesquieu as a scathing satire on 
all the brood of despots who were supposed to uphold slavery 
as tolerable in itself. The rights of mankind — that precious 
word which had no equivalent in the language of Hindostan, or 
Judaea, or Greece, or Rome, or any ante-Christian tongue — found 



352 EMANCIPATION [Ch. XXI 

their supporter in Washington and Hamilton, in Franklin and 
Livingston, in Otis, George Mason, and Gadsden ; in all the 
greatest men of our early history. The one rule from which 
the makers of our first Confederacy, and then of our national 
Constitution, never swerved, is this : to fix no constitutional 
disability on any one. Whatever might stand in the way of 
any man, from opinion, ancestry, weakness of mind, inferiority 
or inconvenience of any kind, was itself not formed into a 
permanent disfranchisement. The Constitution of the United 
States was made under the recognized influence of " the eternal 
rule of order and right; " so that, as far as its jurisdiction ex- 
tends, it raised at once the numerous class who had been 
chattels into the condition of persons : it neither originates nor 
perpetuates inequality. 

George Bancroft, Pulpit and Rostrum. 104-107. 

GREELEY (1865) 

Chief Justice Taney, in pronouncing the decision of the 
Court, which nullified the Missouri Restriction, or any restric- 
tion by Congress on the boundless diffusion of Slavery through- 
out the territories of the Union, commenced by denying to Dred 
Scott, or to any person " whose ancestors were imported to this 
country and sold as slaves," any right to sue in a court of the 
United States. . . . 

The Chief Justice proceeds to afl5rm, not only that no per- 
sons who had been, or whose ancestors had been, slaves, were 
regarded as citizens previously to, or at the time of, adopting 
the Federal Constitution, but that no State has, or can have, 
any right to confer citizenship on such persons. Bearing in 
mind the citations from our revolutionary and po.st-revolution- 
ary history, . . . the reader will be puzzled to decide whether 
Law, Humanity, or History, is most flagrantly defied. . . . The 
immortal language of the preamble to the Declaration of Inde- 
pendence, wherein "life, liberty, and the pursuit of happiness," 
are proclaimed the self-evident, inalienable rights of all men, 
might well stagger the most brazen and subtle attorney, but 
not a case-hardened Chief Justice. . . . Justice Curtis is an 
ultra conservative of the State-street (Boston) school — a life- 
long follower of Mr. Webster. . „ . 



1862-1877] CONTEMPORARY EXPOSITION 353 

Though couched in judicial and respectful language, it con- 
stantly, and pretty clearly, intimates not merely that the judg- 
ment of the Court is contrary both to law and to fact, but that 
its authors well knoio such to be the case. . . . Judge Curtis 
says: "It has been often asserted that the Constitution was 
made exclusively by and for the white race. It has already 
been shown that, in five of the thirteen original States, coloured 
persons then possessed the elective franchise, and were among 
those by whom the Constitution was ordained and established. 
If so, it is not true, in point of fact, that the Constitution was 
made exclusively hy the white race. And that it was made 
exclusively for the white race is, in my opinion, not only an 
assumption not warranted by anything in the Constitution, but 
contradicted by its open declaration, that it was ordained and 
established by the people of the United States, for themselves 
and their posterity. And, as free coloured persons were then 
citizens of at least five States, and so, in every sense, part of the 
people of the United States, they were among those for whom and 
whose posterity the Constitution was ordained and established." 

Horace Greeley, The American Conflict, a History of the Great 
Rebellion. I. 253-262, passim. 

WILSON (1877) 

The dissenting opinion of Justice Curtis was very decided, 
thorough, fortified by an impregnable arra}' of authorities, and, 
from his well-known conservatism, worthy of special notice. 
In reply to the assertion of the majority that the negro was 
not a " citizen," he asserted that " the citizens of the several 
States were citizens of the United States under the confedera- 
tion," and he instanced the fact that all free native-born in- 
habitants of the States of New Hampshire, Massachusetts, 
New York, New Jersey, and North Carolina, though descended 
from African slaves, were not only " citizens," but many of 
them had "the franchise of electors." . . . Nor did the fact 
that in some States they were deprived of some of the rights 
possessed by the whites militate against their citizenship. " The 
truth is," said Judge Curtis, "that citizenship, under the Con- 
stitution of the United States, is not dependent on the posses- 
sion of any particular political or even of any civil rights." 

Henry Wilson, Rise and Fall of the Slave Power in America. II. 530. 

23 



354 EMANCIPATION [Ch. XXI 



CRITICAL COMMENT 

VON HOLST (1875) 

Not only was there no need of the decree [Taney's decision 
as to the constitutional law respecting citizenship], but it was 
against right and issued confessedly on political grounds. The 
opinions of the majority differed from one another in their argu- 
mentation, and to some extent in their concessions, so widely 
that, taken together, they constituted an inextricable tangle, 
and two of the judges not only opposed the chief justice on 
one point after another, but the severest moral condemnation 
could be heard in their juridico-historical deductions, spite 
of their calmness and strict pragmatism. 

Hermann E. von Holst, Constitutional and Political History of the United 
States. VI. 45, 46. 

SCHOULER (1891) 

The defendant slave-holder pleaded to the circuit jurisdic- 
tion that Dred Scott was not in any case " a citizen entitled to 
sue," because a negro of African descent; that plea the court 
overruled, and, in May, 1854, sent the case to a jury, in accord- 
ance with whose verdict judgment was rendered that the plain- 
tiff was still properly a slave; and then the whole record went 
on final appeal to the tribunal in Washington. Not referees, 
to be sure, at their own instance, the nine silk gowns, all 
Democrats but one, and five of them from the States where 
colour presumed servitude, listened patiently to the arguments 
of counsel favourable to one political aspect of the case or 
another. Argued at the winter term which preceded this last 
Presidential canvass, reargued at the next term following the 
election, this case was not decided till the churn of legislation 
overhead had ceased and the President-elect was inducted into 
office ; after which, the oracle which Southern statesmen behind 
the scenes had been trying for many weeks to pry open was 
gravely unsealed. 

It was an extraordinary decision, certainly, for the third 
quarter of the nineteenth century, and extraordinary in more 
senses than one. . . . 



1875-1891] CRITICAL COMMENT 355 

Melancholy must have been the spectacle in this cavern of 
justice, through whose eastern windows glanced the sunbeams 
as into some mausoleum, when the Chief Justice, a man of frail 
and attenuated frame, read to a large audience of the bar, in 
a low tone of voice almost inaudible, the majority opinion pre- 
pared by himself. Elaborate, adroitly put together and cruel, 
it doomed the African of this age by the standard of three 
centuries ago, — exploring musty and worm-eaten codes, and 
announcing far too broadly that, at the date our Federal Con- 
stitution was adopted, negroes had been and were still regarded 
as beings of an inferior order, " and so far inferior that they 
had no rights which the white man was bound to respect." 
That curdling phrase was not forgotten; and, though Taney 
uttered it merely as an historical conclusion, our people believed 
it to express the real sentiment entertained by himself and his 
Southern colleagues on the bench towards the oppressed ; and 
in that sense they interpreted it. Taney had many admirable 
traits of character, being learned in the law, painstaking, up- 
right, and full of dignity ; that he could take odium unflinch- 
ingly he had shown when, as Jackson's secretary he removed 
the deposits. But he was wanting in the flow of healthy blood, 
and henceforth to a large fraction of Americans he seemed 
almost a vampire, hovering in the dim twilight. Not difflcult 
was it to rake together a heap of rubbish testimony from 
colonial acts, the writings of European publicists, and the 
statute-books moreover of our original thirteen States. But 
where was the clear letter of the Constitution that set an 
eternal doom upon the inheritors of an Ethiopian skin? For 
Indians, it was admitted, the red race, were placed in no such 
unfortunate category. Where was the rising sun of the Ameri- 
can revolution, to dissipate this festering mass of misconcep- 
tion? Where were the hopes, the wishes, cherished by Franklin, 
by Washington, by Jefferson, Adams, Hamilton, Madison, and 
all the chief framers and expounders of our perfected Federal 
system, under whose benign influence freedom was carried into 
new territories ? 

James Schoulee, History of the United States. V. 378-380. 



356 EMANCIPATION [Ch. XXI 

RHODES (1893) 

The opinion of Taney was but the doctrine of Calhoun, 
announced for the first time in 1847, and now embodied in a 
judicial decision. . . . Only by the conviction that slavery was 
being pushed to the wall, in conjunction with subtle reason- 
ing like that of Calhoun, who tried to obstruct the onward 
march of the century by a fine-spun theory, could a sentiment 
have been created which found expression in this opinion of 
Taney, outraging as it did precedent, history, and justice. 

That Taney committed a grievous fault is certain. He is 
not to be blamed for embracing the political notions of John 
C. Calhoun; his environment gave that shape to his thoughts; 
but he does deserve censure because he allowed himself to 
make a political argument, when only a judicial decision was 
called for. . . . Nothing but an imperative need should have 
led judges, by their training and position presumably con- 
servative, to unsettle a question that had so long been acqui- 
esced in. The strength of a constitutional government lies in 
the respect paid to settled questions. . . . 

If Taney spoke for Calhoun, Curtis spoke for Webster. . . . 
If Taney furnished arguments for the Democrats, Curtis showed 
that the aim of the Republicans was constitutional. . . . 

Justice Curtis rose to the height of the situation, and in 
his opinion gave the key-note to the constitutional argument 
against the opinion of the court being in any way binding on 
the political consciences of the people. . . . 

Not Republicans alone saw the matter in this light under the 
guidance of so earnest and able a jurist. 

James Ford Rhodes, History of the United States. II. 260-263. 
BRTOE (189G) 

Whenever the Constitution has conferred a power of legis- 
lating upon Congress, the Court declines to inquire whether 
the use of the power was in the case of a particular statute 
passed by Congress either necessary or desirable, or whether 
it was exerted in a prudent manner, for it holds all such matters 
to be within the exclusive province of Congress. . . . 

Adherence to this principle has enabled the Court to avoid 



1893-1896] CRITICAL COMMENT S57 

an immixture in political strife which must have destroyed its 
credit, has deterred it from enteriug the political arena, where 
it could have been weak, and enabled it to act without fear in 
the sphere of pure law, where it is strong. . . . Occasionally, 
however, it has been required to give decisions which have 
worked with tremendous force on politics. The most famous 
of these was the Dred Scott case, in which the Supreme Court, * 
on an action by a negro for assault and battery against the 
person claiming to be his master, declared that a slave taken 
temporarily to a free State and to a Territory in which Con- 
gress had forbidden slavery, and afterwards returning into a 
slave State and resuming residence there, was not a citizen 
capable of suing in the Federal courts if by the laws of the 
slave State he was still a slave. This was the point which 
actually called for a decision ; but the majority of the court, 
for there was a dissentient minority, went further, and deliv- 
ered a variety of dicta on various other points touching the 
legal status of negroes, and the constitutional view of slavery. 
James Bryce, American Commonwealth^ 189, 190. 
I Copyright, 1896, by the Macmillan Co. 



358 PROCLAMATION OF EMANCIPATION [Ch. XXII 



Chapter XXII 
EMANCIPATION OF THE SLAVES (1862-1863) 

SUGGESTIONS 

In Barrett's biography of Abraham Lincoln, it is stated that the first 
rough draft of the Emancipation Proclamation was written on board 
ship as the President was returning from his visit to the army at 
Harrison's Landing, the 8th of July. The original oiiicial draft is 
dated September 22nd, 1862, and was presented to the Army Relief 
Bazaar at Albany, N. Y., in 18G4. It is in the handwriting of Presi- 
dent Lincoln, excepting two interlineations in pencil, by Secretary 
Seward, and the formal heading and ending, which were written by 
the chief clerk of the State Department. The final Proclamation was 
signed on New Year's Day, 1863. 

These documents demand close study : the preliminary proclama- 
tion has a background of military as well as political history, which 
is of the greatest importance ; and in the study of the final document 
the student should take into consideration the story of Lincoln's 
life; the anecdotes and incidents grouping themselves ai'ound the 
abolitionists of the North ; the home life upon the Southern planta- 
tion ; the long struggle between the two great parties in Congress, — 
problems which preceded the Proclamation of 1863. 

For Outlines and Material, see Appendix B. 

DOCUMENTS 
Preliminary Proclamation of Emancipation 

September 22, 1862. 

Text taken Ii Abraham Lincoln, President of the United 

from Abra- States of America, and commauder-in-chief of the 
hamLmcoln, , ,, j? i i u i • j j 

Complete army and navy thereof, do hereby proclaim and de- 

Works, ii.2Z1. clare that hereafter, as heretofore, the war will be 

N"ote that prosecuted for the object of practically restoring- the 

Lincoln was constitutional relation between the United States, 
the head of ' 

the Army and each of the States, and the people thereof, in 



1862] TEXT 359 

whicli States that relation is or may be suspended or according to 

disturbed. S-t ^«- 

That it is my purpose, upon the next meeting of r^j^j^ r)rocla- 

Congress, to again recommend the adoption of a mation was 

practical measure tendering pecuniary aid to the kept back 

free acceptance or rejection of all slave States so the victory 

called, the people whereof may not then be in rebel- ^^ Antietam. 

President 
lion against the United States, and which States Lincoln had 

may then have voluntarily adopted, or thereafter vowed to 

may voluntarily adopt, immediate or gradual abol- f^igi the^ 

ishment of slavery within their respective limits ; promise to 

and that the effort to colonize persons of Af ri- ^^^'^^ ^^^^1\ ^ 
. ' Ijroclamation 

can descent, with then' consent, upon tins conti- if the " rebel 

nent or elsewhere, with the previously obtained army " were 
consent of the governments existing there, will in December 
be continued. the House 

That on the first day of January, in the year of oiutSnYo^^" 
our Lord one thousand eight hundred and sixty- approve the 

three, all persons held as slaves within any State, or Pi'esideut's 

"^ policy, 

designated part of a State, the people whereof shall 

then be in rebellion against the United States, shall 
be then, thenceforward, and forever free ; and the 
Executive Government of the United States, includ- 
ing the military and naval authority thereof, will 
recognize and maintain the freedom of such per- 
sons, and will do no act or acts to repress such 
persons, or any of them, in any efforts they may 
make for their actual freedom. 

That the Executive will, on the first day of January See Final 
aforesaid, by proclamation, designate the States Proclama- 
and parts of States, if any, in which the people 
thereof respectively shall then be in rebellion against ISTo such con- 
the United States ; and the fact that any State, or brou-hl^^ 
the people thereof, shall on that day be in good faith about be- 
represented in the Congress of the United States, by ^^^^iggf^^anJi 
members chosen thereto at elections wherein a ma- Jan. 1, 1863. 
jority of the qualified voters of such State shall have 
participated, shall, in the absence of strong counter- 
vailing testimony, be deemed conclusive evidence 



360 PROCLAMATION OF EMANCIPATION [Ch. XXII 



Kefusal of 
government 
to uphold 
Fugitive 
Slave Law. 



" Contra- 
bands" be- 
come free 
men. 



that such State, and the people thereof, are not then 
in rebellion against the United States. 

That attention is hereby called to an act of Con- 
gress entitled " An act to make an additional article 
of war," approved March 13th, 1862, and which act 
is in the words and figures following : 

" Be it enacted hy the Senate and House of Repre- 
sentatives of the United States of Ame^'ica in Con- 
gress assembled^ That hereafter the following shall 
be promulgated as an additional article of war for 
the government of the army of the United States, 
and shall be obeyed and observed as such : 

' ' Article — . All officers or persons in the mili- 
tary or naval service of the United States are pro- 
hibited from employing any of the forces under their 
respective commands for the purpose of returning 
fugitives from service or labour who may have es- 
caped from any persons to whom such service or 
labour is claimed to be due ; and any officer who 
shall be found guilty by a court-martial of violating 
this article shall be dismissed from the service." 

"Section 2. And he it further enacted, That this 
act shall take effect from and after its passage." 

Also, to the ninth and tenth sections of an act 
entitled "An act to suppress insurrection, to punish 
treason and rebellion, to seize and confiscate prop- 
erty of rebels, and for other purposes," approved 
July 17, 1862, and which sections are in the words 
and figures following : 

" Sec. 9. And he it further enacted, That all 
slaves of persons who shall hereafter be engaged in 
rebellion against the government of the United 
States, or who shall in any way give aid or com- 
fort thereto, escaping from such persons and taking 
refuge within the lines of the army ; and all slaves 
captured from such persons, or deserted by them, 
and coming under the control of the government of 
the United States; and all slaves of such persons 
found on [or] being within any place occupied by 



1862J TEXT 361 

rebel forces and afterwards occupied by forces of the 
United States, shall be deemed captives of war, and 
shall be forever free of their servitude, and not again 
held as slaves. 

" Sec. 10. And he it farther eyiacted. That no 
slave escaping into any State, Territory, or the Dis- 
trict of Columbia, from any other State, shall be Practically- 
delivered up, or in any way impeded or hindered of *^^^, ^f\f ^'^' 
his liberty, except for crime or some offense against Fugitive 
the laws, unless the person claiming said fugitive Slave Act of 
shall first make oath that the person to whom the 
labour or service of such fugitive is alleged to be due 
is his lawful owner, and has not borne arms against 
the United States in the present rebellion, nor in 
any way given aid and comfort thereto ; and no per- 
son engaged in the military or naval service of the 
United States shall, under any pretence whatever, 
assume to decide on the validity of the claim of any 
person to the service or labour of any other person, 
or surrender up any such person to the claimant, on 
pain of being dismissed from the service." 

And I do hereby enjoin upon and order all per- 
sons engaged in the military and naval service of 
the United States to observe, obey, and enforce, 
within their respective spheres of service, the act 
and sections above recited. 

And the Executive will in due time recommend 

that all citizens of the United States who shall have Compen- 

remained loyal thereto throughout the rebellion shall sated eman- 
/ , T 1 . cipatiou 

(upon the restoration of the constitutional relation proved inef- 

between the United States and their respective fectual. 

States and people, if that relation shall have been 'T^i? ^^?,*^^^' 

suspended or disturbed) be compensated for all been talked 

losses by acts of the United States, including the of for months 

lo^s of slaves. Se p«t"^' 

In witness whereof, I have hereunto set my hand, and politi- 

and caused the seal of the United States to be *^^^?®- 31^^^^ 
™ , not until the 

affixed. President 



362 PROCLAMATION OF EMANCIPATION [Ch. XXII 

deemed it Done at the city of Washington, this twenty-second 
iTwaTeveii ^^^ ^^ September, in the year of our Lord 

drafted (July [l, s.] one thousand eight hundred and sixty-two, 
then lafd^^^ ^^^ ^^ *^® Independence of the United States 

aside for tlie the eighty-seventh. Abraham Lincoln. 

ripening of By the President : 

Wm. H. Sewaed, Secretary of State. 



Final Proclamation of Emancipation. 

January 1, 1863. 

Text from Whereas, on the twenty-second day of September, 

Abrahani jj^ ^j^g year of our Lord one thousand eight hundred 
plete Works, and sixty-two, a proclamation was issued by the 
11.287. President of the United States, containing, among 

other things, the following, to wit : 



See preced- 
ing docu- 
ment. 



" That on the first day of January, in the year of 
our Lord one thousand eight hundred and sixty- 
three, all persons held as slaves within any state or 
designated part of a state, the people whereof shall 
then be in rebellion against the United States, shall 
be then, thenceforward, and forever free; and the 
Executive Government of the United States, includ- 
ing the military and naval authority thereof, will 
recognize and maintain the freedom of such per- 
sons, and will do no act or acts to repress such 
persons or any of them, in any efforts they may 
make for their actual freedom. 

" That the Executive will, on the first day of 
January aforesaid, by proclamation, designate the 
states and parts of states, if any, in which the 
people thereof respectively shall then be in rebel- 
lion against the United States ; and the fact that 
any state, or the people thereof, shall on that day 
be in good faith represented in the Congress of the 
United States, by members chosen thereto at elec- 
tions wherein a majority of the qualified voters of 
such state shall have participated, shall, in the ab- 



1862-1863] TEXT 363 

sence of strong countervailing testimony, be deemed 

conclusive evidence that such state, and the people 

thereof, are not then in rebellion against the United 

States." 

Now, therefore, I, Abraham Lincoln, President By virtue of 

of the United States, by virtue of the power in me coLmrnder- 

vested as commander-in-chief of the army and navy in-chief "in 

of the United States in time of actual armed rebel- *™f ^* ^^~ 

tual armed 
lion against the authority and government of the rebellion." 

United States, and as a fit and necessary war meas- 
ure for suppressing said rebellion, do, on this first 
day of January, in the year of our Lord one thou- 
sand eight hundred and sixty-three, and in accord- 
ance with my purpose so to do, publicly proclaimed 
for the full period of 100 days from the day first 
above mentioned, order and designate, as the states 
and parts of states wherein the people thereof respec- 
tively are this day in rebellion against the United 
States, the following, to wit : 

Arkansas, Texas, Louisiana (except the parishes Tennessee 
of St. Bernard, Plaquemine, Jefferson, St. John, St. q? Lo^fiJana 
Charles, St. James, Ascension, Assumption, Terre and Virginia 
Bonne, Lafourche, St. Marie, St. Martin, and Or- occupied by 
leans, including the city of New Orleans), Missis- ^ere not in- 
sippi, Alabama, Florida, Georgia, South Carolina, eluded. 
North Carolina, and Virginia (except the forty- 
eight counties designated as West Virginia, and 
also the counties of Berkely, Accomac, Northamp- 
ton, Elizabeth City, York, Princess Ann, and Nor- 
folk, including the cities of Norfolk and Ports- 
mouth), and which excepted parts are for the pres- 
ent left precisely as if this proclamation were not 
issued. 

And, by virtue of the power and for the purpose Death blow 
aforesaid, I do order and declare that all persons *^ slavery. 
held as slaves within said designated states and 
parts of states are and henceforth shall be free ; 
and that the Executive Government of the United 
States, including the military and naval authorities 



364 PROCLAMATION OF EMANCIPATION [Ch. XXII 

thereof, will recognize and maintain the freedom of 
said persons. 

And I hereby enjoin upon the people so declared Encourage- 
to be free, to abstain from all violence, unless in ment. 
necessary self-defence ; and I recommend to them 
that in all cases, when allowed, they labour faithfully 
for reasonable wages. 

And I further declare and make known that such Acknowledg- 
persons of suitable condition will be received into coloured 
the armed service of the United States, to garrison troops, 
forts, positions, stations, and other places, and to 
man vessels of all sorts in said service. 

And upon this act, sincerely believed to be an 

act of justice, warranted by the Constitution, upon . ,, , . 

military necessity, I invoke the considerate judg- the South 

raent of mankind and the gracious favour of Al- refused to 

. t ^ r^ 1 accept the 

mighty God. negroes as 

In testimony whereof, I have hereunto set my " prisoners 
name, and caused the seal of the United States to consequence 
be affixed. the President 

issued, July 

Done at the city of Washington, this first day of ^j^ order'that 
January, in the year of our Lord one thou- for every 

r- -] sand eight hundred and sixty-three, and of ^-er^k"!! d 

the Independence of the United States the in violation 

eighty-seventh. ^l the laws 

^ "^ . -r of war a rebel 

Abraham Lincoln, soldier 

By the President : should be 

William H. Seward, Secretary of State. execute . 



CONTEMPORARY EXPOSITION 

CRAVENS (1862) 

Let us look for a moment at some of the results of the gen- 
eral and immediate emancipation of four million slaves. . . . 
I know that the instincts of the people are against receiving 
them into their midst. We feel that we are not responsible 
for their maintenance as they now are. We fear, notwith- 
standing any statutory provision we may enact, that these 



1862] CONTEMPORARY EXPOSITION 365 

millions of enfranchised slaves will come in crowds into every 
community ; come into competition with our white labour, and 
burden us with their support. It is not an imaginary fear, as 
the President would have us believe, but a stern reality. The 
few contrabands now under the care of the Government have 
entailed upon it immense expense. This emancipation measure 
seems to contemplate the bursting up of the old relations of 
society, that have long existed in the Southern States. . . . 
What sagacity can foresee the results of universal emancipa- 
tion? My judgment is that the people will never consent to it. 

J. A. Cravens, Speech in House of Representatives. Congressional Globe, 
37th Cong., 3d Sess. Appendix, 43. December 18, 1862. 

THOMAS (1862) 

I have always been taught that the people is the sovereign : 
that these constitutions are carefully defined grants from the 
sovereign powers, so framed as to establish justice, and at the 
same time secure blessings of liberty and the protection of 
law even to the humblest and meanest citizen. I know, Mr. 
Speaker, that these are old-fashioned sentiments. Magna 
Charta is soiled and worm-eaten. The Bill of Eights, the mu- 
niments of personal freedom, habeas corpus^ trial by jury, what 
are they all worth in comparison with this new safeguard of 
liberty, the proceeding in rem ? 

Were you ever in Runnymede, Mr. Speaker ? I remember 
going down, on a beautiful day in July, from Windsor Castle 
to the plain, and crossing the narrow channel of the Thames 
to that little island in which more than six centuries ago, in 
the early gray morning, those sturdy barons wrested from an 
unwilling king the first great charter of English freedom — 
the germ of life of the civil liberty we have to-day. I could 
hardly have been more moved had I stood in the village and 
by the manger in which was cradled the Son of Mary and the 
Son of God. From the gray of that morning streamed the 
rays, which uplifting with the hours, coursing with the years, 
and keeping pace with the centuries have encircled the whole 
earth with the glorious light of English liberty. The liberty 
for which our fathers planted these commonwealths in the wil- 
derness, for which they went through the baptism of fire and 



366 PROCLAMATION OF EMANCIPATION [Ch. XXII 

blood in the Eevolution: which they imbedded and hoped 
to make immortal in the Constitution ; without which the Con- 
stitution would not be worth the parchment on which it is 
written. 

Benjamin F. Thomas, in House of Eepresentatives, Congressional Globe. 
37th Cong., 2d Sess. Appendix, 220. May 24, 1862. 

GRANT (1S63) 

Milliken's Bend, Louisiana. 
. . . Corps, division, and post commanders will afford all 
facilities for the completion of the negro regiments now organ- 
izing in this department. Commissioners will issue supplies, 
and quartermasters will furnish stores, on the same requis-i- 
tions and returns as are required for other troops. It is ex- 
pected that all commanders wiU especially exert themselves in 
carrying out the policy of the Administration, not only in 
organizing coloured regiments and rendering them efficient, but 
also in removing prejudices against them. 

U. S. Grant, General Order, in Jeremiah Chaplin, Words of our Hero, 
Ulysses S. Grant. 9. 

CARPENTER (1866) 

Mr. Chase told me that at the Cabinet meeting, immediately 
after the battle of Antietam, and just prior to the issue of the 
September Proclamation, the President entered upon the busi- 
ness before them, by sayiug that " the time for the annuncia- 
tion of the emancipation policy could be no longer delayed. 
Public sentiment," he thought, "would sustain it — many of 
his warmest friends and supporters demanded it — and he had 
promised his God that he tooidd do it ! " The last part of this 
was uttered in a low tone, and appeared to be heard by no one 
but Secretary Chase, who was sitting near him. He asked the 
President if he correctly understood him. Mr. Lincoln replied : 
' ' I made a solemn vow before God, that if General Lee was 
driven hack from Pennsylvania, I would crown the result by a 
declaration oj^ freedom to the slaves." . . . 

In February, 1865, a few days after the passage of the 
" Constitutional Amendment," I went to Washington, and was 
received by Mr. Lincoln with the kindness and familiarity 



1862-1889] CRITICAL COMMENT 367 

which had characterized our previous intercourse. I said to 
him at this time that I was very proud to have been the artist 
to have first conceived of the design of painting a picture com- 
memorative of the Act of Emancipation ; that subsequent 
occurrences had only confirmed my own first judgment of that 
act as the most sublime moral event in our history. "Yes," 
said he, — and never do I remember to have noticed in him 
more earnestness of expression or manner, — "as affairs have 
turned, it is the central act of my administration, and the large 
event of the nineteenth century." 

F. B. Cakpentek, Six Months at the White House, 89-90. 



CRITICAL COMMENT 
JOHNSTON (18S9) 

At the beginning of the war the people and leaders of the 
North had not desired to interfere with slavery, but circum- 
stances had been too strong for them. Lincoln had declared 
that he meant to save the Union as he best could, — by pre- 
serving slavery, by destroying it, or by destroying part and 
preserving part of it. Just after the battle of Antietam he 
issued his proclamation calling on the revolted States to return 
to their allegiance before the following January 1, otherwise 
their slaves would be declared free men. No State returned, 
and the threatened declaration was issued January 1, 1863. 
As President, Lincoln could issue no such declaration; as 
commander-in-chief of the armies and navies of the United 
States, he could issue directions only as to the territory within 
his lines ; but the Emancipation Proclamation applied only to 
territory outside of his lines. 

It has therefore been debated whether the proclamation was 
in reality of any force. It may f aidy be taken as an announce- 
ment of the policy which was to guide the army, and as a 
declaration of freedom taking effect as the lines advanced. 
At all events, this was its exact effect. Its international im- 
portance was far greater. The locking up of the world's 
source of cotton-supply had been a general calamity, and the 
Confederate Government and people had steadily expected 



368 PROCLAMATION OF EMANCIPATION [Ch. XXII 

that the English and French Governments, or at least one of 
them, would intervene in the war for the purpose of raising 
the blockade and releasing the southern cotton. The conver- 
sion of the struggle into a crusade against slavery made inter- 
vention impossible for Governments whose peoples had now a 
controlling influence on their policy, and intelligence enough to 
understand the issue which had now been made. 

Alexander Johnston, The United States, Its History and Constitution, 
230, 231. 

NICOLAT AND HAT (1890) 

Vast as were its consequences, the act itself was only the 
simplest and briefest formality. It could in no wise be made 
sensational or dramatic. . . . Those who were in the house 
came to the executive office merely from the personal impulse 
of curiosity joined to momentary convenience. His signature 
was attached to one of the greatest and most beneficent mili- 
tary decrees of history in the presence of less than a dozen 
persons ; after which it was carried to the Department of State 
to be attested by the gi'eat seal and deposited among the ar- 
chives of the Government. . , . Like all his reasoning, it is 
simple and strong, resting its authority on the war powers of 
the Government and its justification upon military necessity. 
As to the minor subtleties of interpretation or comment which 
it might provoke from lawyers or judges after the war should 
be ended, we may infer that he had his opinions, but that they 
did not enter into his motives of action. On subsequent occa- 
sions, while continuing to declare his belief that the proclama- 
tion was valid in law, he nevertheless frankly admitted that 
what the courts might ultimately decide was beyond his knowl- 
edge as well as beyond his control. . , . 

For the moment he was dealing with two mighty forces of 
national destiny, civil war and public opinion ; forces which 
paid little heed to theories of public, constitutional, or inter- 
national law where they contravened their will and power. In 
fact it was the impotence of legislative machinery, and the in- 
sufficiency of legal dicta to govern or terminate the conflicts 
of public opinion on this identical question of slavery, which 
brought on civil strife. In the South slavery had taken up 



1889-1897] CRITICAL COMMENT 369 

arms to assert its nationality and perpetuity; in the North 
freedom had risen first in mere defensive resistance ; then the 
varying fortunes of war had rendered the combat implacable 
and mortal. It was not from the mouldering volumes of an- 
cient precedents, but from the issues of the present wager of 
battle, that future judges of courts would draw their doctrines 
to intei'pret to posterity whether the Edict of Freedom was void 
or valid. 

NicOLAY AND Hat, Abraham. Lincoln : A History. VI. 429-430, 435-436. 

PIERCE (1893) 

This proclamation, followed by the later one of January 1, 
1863, yields in importance to no event in American or even in 
modern history. It had not, indeed, the sanction of the States 
as a constitutional provision, or of Congress as a statute, or of 
a high tribunal as a rule of law. It could not perhaps have 
been pleaded in any court as securing the liberty of a single 
slave. But in its significance and effect it stands before any 
edict, secular or ecclesiastical, since Constantine proclaimed 
Christianity as the religion of the Roman world. It was the 
voice of a great nation, uttered in solemn form at the supreme 
moment of its history, pledging itself to the cause of universal 
freedom. 

Edwaed L. Pierce, Memoir and Letters of Charles Sumner. IV. 66. 

DUNNING (1897) 

It has sometimes been said that January 1, 1863, marks the 
most distinct epoch in the history of the war. The Emancipa- 
tion Proclamation is assumed as the dividing line between the 
old system and the new. This view is more appropriate to the 
state of affairs in the South than to that in the North. It is 
unquestionably true that Mr. Lincoln's decree furnished the 
Southern leaders with a most effective instrument for the con- 
solidation of sentiment in the Confederacy. From that time 
the struggle on the part of the South was a desperate battle 
for existence. But in the North, on the other hand, the tri- 
umph of the radicals in securing the adoption of their policy 
by the President awakened feelings of apprehension among the 
other political factions. Mr. Lincoln admits, in his message to 

24 



370 PROCLAMATION OF EMANCIPATION [Ch. XXII 

Congress in December, that the issue of the proclamation " was 
followed by dai'k and doubtful days." 

William A. Dunning, Essays on the Civil War and Reconstruction. 60, 61. 

MORSE (1S97) 

The first day of January, 1863, arrived, and no event had 
occurred to delay the issue of the promised proclamation. It 
came accordingly. By virtue of his power, as commander-in- 
chief, . . . the President ordered that all persons held as slaves 
in certain States and parts of States, which he designated as 
being then in rebellion, should be thenceforward free, and de- 
clared that the Executive, with the army and navy, would 
" recognize and maintain the freedom of said persons." . . . 

The people at large received this important step with some 
variety of feeling and expression ; but, upon the whole, ap- 
proval seems to have far outrun the dubious prognostications 
of the timid and conservative class. For the three months, 
which had given opportunity for thinking, had produced the 
result which Mr. Lincoln had hoped for. It turned out that the 
mill of God had been grinding as exactly as always. Very 
many, who would not have advised the measure, now heartily 
ratified it. Later, after men's minds had had time to settle 
and the balance could be fairly struck, it appeared undeniable 
that the final proclamation had been of good effect; so Mr. 
Lincoln himself said. 

John T. Morse, Jr., Abraham Lincoln. II. 130-132. 

McCALL (1S90) 

Lincoln determined that the bravest course was the safest 
course, and he put emancipation as a war measure squarely 
before the people only a few weeks before the Congressional 
elections of 1862. He declared that all slaves in those rebel 
States which should not have submitted before January 1, 1863, 
" shall be then, thenceforward, and forever free." It was in 
the power of the Confederates to avoid the proclamation by 
laying down their arms. They were not compelled to continue 
the war. On the other hand if they were to keep on fighting 
indefinitely they could not expect the North to cherish their 



1897-1900] CRITICAL COMMENT 371 

institution any longer. It was well that Lincoln displayed all 
his consummate skill as a politician in framing the issue as he 
did frame it, for the election was of transcendent importance, 
A hostile Congress meant, not merely delay and probably de- 
struction to the emancipation policy, but it meant also reduced 
appropriations for the war and great encouragement to the 
Confederates. The Democrats accepted the issue ; indeed they 
were anxious to raise it. 

Samuel W. McCall, Thaddeus Stevens. 218-219. 

FREDERIC BANCROFT (1900) 

Before the proclamation of emancipation was issued, Jan- 
uary 1, 1863, emancipation societies were forming in England; 
and by the time it had crossed the Atlantic all intelligent Eng- 
lishmen were beginning to gain correct knowledge as to the 
cause of the war. January had not passed before the first 
waves of the anti-slavery storm in America were felt. In a 
few weeks more, English public opinion showed a surprising 
awakening. Great public meetings were held in the large cities, 
and famous speakers addressed audiences infused with the 
ardour and courage peculiar to national reform movements. The 
mass of labourers in mines and factories rapidly developed a 
bitter prejudice against the Confederacy. Impressive anti- 
slavery resolutions were passed unanimously, and addresses of 
congratulation were sent to the President of the United States. 
As Cobden wrote to Sumner, these remarkable demonstrations 
of sympathy for the cause of freedom "closed the mouths of 
those who have been advocating the side of the South." The 
friends of the North felt thenceforth that they had a cause to 
plead. 

Frederic Bancroft, Life of William H. Seward^ II. 340-341. 

TARBELL (1900) 

When Congress opened on December 1, he did submit the 
proclamation, together with the plan for compensated emanci- 
pation which he had worked out. Over one-half of the mes- 
sage, in fact, was given to this plan. 

Mr. Lincoln pleaded with Congress for his measure as he 

1 Copyright, 1899 and 1900, by Harper & Brothers. 



872 PROCLAMATION OF EMANCIPATION [Ch. XXII 

had never pleaded before. He argued that it would " end the 
struggle and save the Union forever," that it would " cost 
no blood at all," that Congress could do it if they would unite 
with the executive, that the "good people" would respond 
and support it if appealed to. 

" It is not," he said, " 'Can any of us imagine better? ' but, 
' Can we all do better?' Object whatsoever is possible, still 
the question occurs, ' Can we do better?' The dogmas of 
the quiet past are inadequate to the stormy present. The occa- 
sion is piled high with difficult}', and we must rise with the 
occasion. As our case is new, so we must think anew and act 
anew. We must disenthrall ourselves, and then we shall save 
our country. 

" Fellow citizens, we cannot escape history. We of this 
Congress and this Administration will be remembered in spite 
of ourselves. No personal significance or insignificance can 
spare one or another of us. The fiery trial through which we 
pass will light us down, in honour or dishonour, to the latest 
generation. We say we are for the Union. The world will 
not forget that we say this. We know how to save the Union. 
The world knows we do know how to save it. We — even 
we here — hold the power and bear the responsibility. In giv- 
ing freedom to the slave, we assure freedom to the free — hon- 
ourable alike in what we give and what we preserve. We shall 
nobly save or meanly lose the last, best hope of earth. Other 
means may succeed ; this could not fail. The way is plain, 
peaceful, generous, just — ■ a way which, if followed, the world 
will forever applaud, and God must forever bless." 

Ida M. Tarbell, Life of Abraham Lincoln. II. 122-123. 



1865-1868] DOCUMENTS 373 



Chapter XXIII 
THE RECONSTRUCTION AMENDMENTS (1865-1870) 

SUGGESTIONS 

The Thirteenth Amendment was proposed by Congress Feb. 1, 1865, 
and declared to have been ratified by twenty-seven of the thirty-six 
States, Dec. 18, 1865. 

The Fourteenth Amendment was proposed by Congress June 16, 
1866, and declared to have been ratified by thirty of the thirty-six 
States, July 28, 1868. 

The Fifteenth Amendment was proposed by Congress Feb. 26, 1869, 
and declared to have been ratified by twenty-nine of the thirty-seven 
States, March 30, 1870. 

With the examination of the three amendments, we reach the 
farthest extension of free institutions by the Teutonic race. Begin- 
ning with the liberty of the baron, set forth in Magna Charta in 
1215, the doctrine that all inen are born equal in so far as rights and 
privileges in government are concerned was in these documents finally 
demonstrated and made good by law. 

For Outlines and Material, see Appendix B. 

DOCUMENTS 

Thirteenth Amendment (1865) 

Section 1. Neither slavery nor involuntary servi- American His- 

tude, except as a punishment for crime whereof the ^'"•^ Leaflets, 

party shall have been duly convicted, shall exist from original 

within the United States, or any place subiect to manuscript 
,....,.,. ' ^ ^ ^ Eolls). Slav- 

their jurisdiction. ery forbidden 

Section 2. Congress shall have power to enforce by law in 
this article by appropriate legislation. under ^^^S 

jurisdiction. 
Fourteenth Amendment (1868) 

Section 1. All persons born or naturalized in citizenship 
the United States, and subject to the jurisdiction defined by 



374 



RECONSTRUCTION AMENDMENTS [Ch. XXlII 



law. Note 
" Opinion of 
the Court," 
Dred Scott 
Case. This 
section was 
modified by 
tlie adoption 
of the 15th 
Amendment, 
whicli abso- 
lutely took 
away from 
the State the 
power to ex- 
clude the 
negro from 
suffrage. 



thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States ; 
nor shall any State deprive any person of life, lib- 
erty, or property, without due process of law ; nor 
deny to any person within its jurisdiction the equal 
protection of the laws. 

Section 2. Representatives shall be apportioned 
among the several States according to their respec- 
tive numbers, counting the whole number of persons 
in each State, excluding Indians not taxed. But 
when the right to vote at any election for the choice 
of electors for President and Vice President of the 
United States, Representatives in Congress, the Ex- 
ecutive and Judicial officers of a State, or the mem- 
bers of the Legislature thereof, is denied to any of 
the male inhabitants of such State, being twenty- 
one years of age, and citizens of the United States, 
or in any way abridged, except for participation in 
rebellion, or other crime, the basis of representation 
therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in 
such State. 

Section 3. No person shall be a Senator or Rep- 
resentative in Congress, or elector of President and 
Vice President, or hold any office, civil or military, 
under the United States, or under any State, who, 
having previously taken an oath, as a member of 
Congress, or as an officer of the United States, or 
as a member of any State legislature, or as an ex- 
ecutive or judicial officer of any State, to support 
the Constitution of the United States, shall have en- 
gaged in insurrection or rebellion against the same, 
or given aid and comfort to the enemies thereof. 
But Congress may by a vote of two-thirds of each 
House, remove such disability. 

Section 4. The validity of the public debt of the 



1868-1870] CONTEMPORARY EXPOSITION 375 

United States, authorized by law, including debts Federal Debt 
incurred for payment of pensions and bounties for ^^o^^^erate 
services in suppressing insurrection or rebellion, repudiated, 
shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or re- 
bellion against the United States, or any claim for 
the loss or emancipation of any slave ; but all such 
debts, obligations and claims shall be held illegal 
and void. 

Section 5. The Congress shall have power to 
enforce, by appropriate legislation, the provisions 
of this article. 

By this 
Fifteenth Amendment (1870) amendment 

Section 1. The right of citizens of the United jj^^^^jg ?'^jpj^j._ 

States to vote shall not be denied or abridged by tial, but not 

the United States or by any State on account of JJ^iversaf ^to 

race, colour, or previous condition of servitude. — male citizens 

Section 2. The Congress shall have power to above the age 
.11 . . 1 • 1 \- of twenty- 

enforce this article by appropriate legislation. — one years. 



CONTEMPORARY EXPOSITION 

COFFROTH (1865) 

Mr. Speaker, I speak not to-day for or against slavery. I 
am contented that this much agitated question shall be adjudi- 
cated at the proper time by the people. It is my purpose to 
state in all candour the reasons which prompt me to give the vote 
I shall now soon record. The amending of our Constitution is 
fraught with so much importance to the American people that 
before it is accomplished the amendments proposed should be 
scrutinized with the strictest criticism. . . . The life and exist- 
ence of this nation is centered in the observance and faithful 
execution of the powers conferred by the Constitution upon the 
servants of the people. . . . 

It is argued that this amendment is unconstitutional ; that the 
Congress of the United States has no legal authority to propose 
this amendment, nor have the states in ratifying it the consti- 



376 RECONSTRUCTION AMENDMENTS [Ch. XXIII 

tutional power to destroy or interfere with the right of property. 
Learned gentlemen of this House differ on this subject. The 
Constitution itself provides the remedy by which all these dif- 
ferences of opinion can be legally adjudicated. (See Sec. 2 of 
Art. 3 of the Constitution. ) . . . I have voted for every peace 
resolution in this House. My heart yearns for peace . . . and 
if by my vote this amendment is submitted to the States, and it 
brings this war to a close, I will ever rejoice at the vote I have 
given. 
A. H. CoPFKOTH, Con(7?-essiona/ C/oie, 38 Cong. 2(1 Sess. 523. Jan. 31,1865. 

BROWN (18C5) 

It is mischievous in so far as it would tie the hands of the 
President, in so regulating the mode of abolishing slavery as 
not to precipitate upon the country three million ignorant and 
debased negroes, without the slightest preparation for liberty or 
power on the part of the Government, by a system of appren- 
ticeship or otherwise to require them to labour. . . . 

England, in emancipating the slaves on her islands, not only 
established a system of apprenticeship, but compensated those 
who lost. It is no answer that slavery is immoral : individuals, 
upon the faith of laws which recognized rights in negro labour, 
have invested their property in such rights. When the Govern- 
ment sees fit to change its policy and destroy its rights, it owes 
compensation. Of course compensation is due only to loyal 
owners. 

It is a dangerous abuse of the power of amendment conferred 
by the Constitution. 

J. S. Beown, in House of Representatives, Congressional Globe, 38 Cong. 
2d Sess. 527. Jan. 31, 1865. 

BLAINE (188G) 

The proposed Constitutional amendment was brought before 
the House on the 6th of January by Mr. Ashley of Ohio, upon 
whose motion to reconsider the adverse vote of the preceding 
session, the question continued to have a parliamentary status. 
He made a forcible speech in support of the amendment, but 
the chief value of his work did not consist in speaking, but in 
his watchful care of the measure, in the quick and intuitive 
judgment with which he discerned every man on the Demo- 



1868-1886] CONTEMPORARY EXPOSITION 377 

cratic side of the House who felt anxious as to the vote he 
should give on the momentous question, and in the pressure 
which lie brought to bear upon him from the best and most in- 
fluential of his constituents. The issue presented was one that 
might well make thoughtful men pause and Consider. The 
instant restoration to four millions of human beings of the 
God-given right of freedom so long denied them, depended 
upon the vote of the House of Representatives. It addressed 
itself to the enlightened judgment and to the Christian phi- 
lanthropy of every member. Each one had to decide for 
himself whether so far as lay in the power of his own vote he 
would give liberty to the slave, or forge his fetters anew. The 
constitutional duty of not interfering with slaver3' in the States 
could not be pleaded at the bar of conscience for an adverse 
vote. There was no doubt that under the terms of the Con- 
stitution such interference was unwarranted. But this was a 
question of changing the Constitution itself so as to confer 
upon Congress the express power to enlarge the field of per- 
sonal liberty and make the Republic free indeed. It came 
therefore as an original and distinct question whether millions 
of people with their descendants for aU time should be doomed 
to slavery or gifted with freedom. . . . 

The vote was 119 yeas to 56 nays — more than the constitu- 
tional two-thirds. When the announcement was made, the 
Speaker became powerless to preserve order. The members 
upon the Republican side sprang upon their seats cheering, 
shouting, and waving hands, hats, and canes, while the specta- 
tors upon the floor and in the galleries joined heartily in the 
demonstrations. . . . 

The great act of Liberation, so far as Congress could control 
it, was complete. The amendment was at once submitted to 
the States, and by official proclamation of December 18, 1865, 
— less than eleven months after Congress had spoken, — the 
Secretary of State announced that it had been ratified by the 
Legislatures of twenty-seven States and was a part of the Con- 
stitution. The result was attained by the united action of one 
party and the aid of a minority of the other party. The co- 
operation of the Democratic members had gained for the cause 
of emancipation a whole year. The action was of transcend- 



378 RECONSTRUCTION AMENDMENTS [Ch. XXIII 

ent importance — lofty in conception, masterful in execution. 
Slavery in the United States was dead. To succeeding and not 
distant generations its existence in a Republic, for three-quar- 
tex's of a century, will be an increasing marvel. . . . 

The success of reconstruction in the South carried with it 
the ratification of the Fourteenth Amendment by the requisite 
number of States. The result was duly certified by Mr. Seward 
as Secretary of State, on the twenty-eighth day of July, 1868, 
and the Amendment was thenceforward a part of the organic 
law of the nation. It had been carried, from first to last, as 
a party measure — unanimously supported by the Republicans, 
unanimously opposed by the Democrats. Its grand and benefi- 
cent provisions failed to attract the vote of a single Democratic 
member in any State Legislature in the whole Union. ... It 
is very seldom in the history of political issues, even when par- 
tisan feeling is most deeply developed, that so absolute a di- 
vision is found as was recorded upon the question of adopting 
the Fourteenth Amendment. It has not been easy in succeed- 
ing years to comprehend the deep-seated, all-pervadiug hostility 
of the Democratic party to this great measure. Even on the 
Thirteenth Amendment containing the far more radical propo- 
sition to abolish slavery, a few Democrats, moved by phil- 
anthropic motives, broke from the restraint of party and 
honoured themselves by recording their votes on the side of 
humanity and justice ; but on the Fourteenth Amendment the 
line of Democratic hostility in Nation and in State was abso- 
lutely unbroken. 

It seems incredible that Democrats can be satisfied with the 
record made by their party on this most grave and important 
question. Every one of the many objects aimed at in the 
Fourteenth Amendment is founded upon a basis of justice, of 
liberty, of an enlarged and enlightened nationality. Its minor 
provisions might be regarded as temporary in their nature, but 
its leading provisions are permanent and are essential to the 
vitality of a true republic. Even those which may be held as 
temporary deeply affect more than one generation of American 
citizens, and are of themselves sufficiently important to justify 
a great struggle for their adoption. . . . 

Suffrage by the Fifteenth Amendment was made impartial, 



1886] CONTEMPORARY EXPOSITION 379 

but not necessarily universal, to male citizens above the age of 
twenty-one years. 

The adoption of the Fifteenth Amendment seriously modified 
the effect and potency of the second section of the Fourteenth 
Amendment. Under that section a State could exclude the 
negro from the right of suffrage, if willing to accept the penalty 
of the proportional loss of representation in Congress, which 
the exclusion of the coloured population from the basis of ap- 
portionment would entail. But the Fifteenth Amendment took 
away absolutely from the State the power to exclude the negro 
from suffrage, and therefore the second section of the Four- 
teenth Amendment can refer only to those other disqualifica- 
tions never likely to be applied, by which a State might lessen 
her voting population by basing the right of suffrage on the 
ownership of real estate, or on the possession of a fixed 
income, or upon a certain degree of education, or upon nativity, 
or religious creed. It is still in the power of the States to apply 
any one of these tests, or all of them, if willing to hazard the 
penalty prescribed in the Fourteenth Amendment. But it is 
not probable that any one of these tests will ever be applied. 
Nor were they seriously taken into consideration when the 
Fourteenth Amendment was proposed by Congress. Its prime 
object was to correct the wrongs which might be enacted in 
the South, and the correction proposed was direct and unmis- 
takable ; viz., that the Nation would exclude the Negro from 
the basis of apportionment wherever the State should exclude 
him from the right of suffrage. 

When therefore the nation by subsequent change in its Con- 
stitution declared that the State shall not exclude the negro 
from the right of suffrage, it neutralized and surrendered the 
contingent right before held, to exclude him from the basis of 
apportionment. Congress is thus plainly deprived by the Fif- 
teenth Amendment of certain powers over representation in the 
South, which it previously possessed under the provisions of 
the Fourteenth Amendment. Before the adoption of the Fif- 
teenth Amendment, if a State should exclude the negro from 
suffrage, the next step would be for Congress to exclude the 
negro from the basis of apportionment. After the adoption of 
the Fifteenth Amendment, if a State should exclude the negro 



380 RECONSTRUCTION AMENDMENTS [Ch. XXIII 

from suffrage, the next step would be for the Supreme Court 
to declare that the act was unconstitutional, and therefore null 
and void. The essential and inestimable value of the Four- 
teenth Amendment still remains in the three other sections, 
and preeminently in the first section. 

James G. Blaine, Twenty Years of Congress. I. 536-539 ; II. 309, 418. 



CRITICAL COMMENT 

LOWELL (1866) 

But under the Johnsonian theory of reconstruction, we shall 
leave a population which is now four millions not only taxed 
without representation, but doomed to be so forever without 
any reasonable hope of relief. The true point is not as to the 
abstract merits of universal suffrage (though we believe it the 
only way toward an enlightened democracy and the only safe- 
guard of popular government) , but as to whether we shall leave 
the freedmen without the only adequate means of self-defence. 
And however it may be now, the twenty-six States certainly 
were the Union when they accepted the aid of these people 
and pledged the faith of the government to their protection. 
Jamaica, at the end of nearly thirty years since emancipation, 
shows us how competent former masters are to accomplish the 
elevation of their liberated slaves, even though their own inter- 
ests would prompt them to it. Surely it is a strange plea to be 
effective in a democratic country, that we owe these people 
nothing because they cannot help themselves ; as if govern- 
ments were instituted for the care of the strong only. The 
argument against their voting which is based upon their igno- 
rance strikes us oddly in the mouths of those whose own hope 
of votes lies in the ignorance, or, what is often worse, the pre- 
judice of the voters. Besides, we do not demand that the 
seceding States should at once confer the right of suffrage on 
the blacks, but only that they should give them the same chance 
to attain it, and the same inducement to maJce themselves 
worthy of it, as to every one else. 

James Russell Lowell, Prose Works. V. 303, 304. 



1866-1896] CRITICAL COMMENT 381 

COOLEY (1880) 

The Last Three Amendments. — In the lapse of ninety years, 
a stage in political history is reached in which the fears and 
anxieties of the people took a new direction. In rapid succes- 
sion one State after another in one-third of the Union had 
rejected and thrown off the federal authority, and it had only 
been restored through a war prosecuted on both sides with 
great bitterness and with enormous destruction of life and 
property. ... It had been found in vain that the federal 
authorities held, and the federal courts decided, that under the 
Constitution a State had no right to withdraw from the Union ; 
it was undeniable that for a time certain of the States had 
succeeded in severing their relations and setting up a new 
government ; and though the federal authority had demon- 
strated that it had, under the Constitution, ample power for 
self-defence and protection, it was deemed wise and prudent to 
require the States to surrender the institution that was the im- 
mediate occasion of the civil war, as well as the power to deal 
unjustly and partially with classes of the people against whom 
there might be jealousies, prejudices, or antipathies, growing 
out of the struggle through which the country had passed, or 
out of some of the antecedent or concomitant circumstances. 
While, therefore, the first amendments were for the purpose of 
keeping the central power within due limits, at a time when the 
tendency to centralization was alarming to many persons, the 
last were adopted to impose new restraints on State sovereignty, 
at a time when State powers had nearly succeeded in destroy- 
ing the national sovereignty. 

Thomas M. Coo let, Constitutional Law. 208-210. 
BRYCE (1896) 

The fourth group is the only one which marked a political 
crisis and registered a political victory. It comprises three 
amendments (XIII., XIV., XV.), which forbid slavery, define 
citizenship, secure the suffrage of citizens against attempts by 
States to discriminate to the injury of particular classes, and 
extend Federal protection to those citizens who may suffer from 
the operation of certain kinds of unjust State laws. These 



382 RECONSTRUCTION AMENDMENTS [Ch. XXIII 

three amendments are the outcome of the War of Secession, 
and were needed in order to confirm and secure for the future 
its results. The requisite majority of States was obtained 
under conditions altogether abnormal, some of the lately con- 
quered States ratifying while actually controlled by the North- 
ern armies, others as the price which they were obliged to pay for 
the re-admission to Congress of their senators and representa- 
tives. The details belong to history : all we need here note is 
that these deep-reaching, but under the circumstances perhaps 
unavoidable, changes were carried through not by the free will 
of the peoples of three-fourths of the States, but under the pres- 
sure of a majority which had triumphed in a great war, and used 
its command of the National government and military strength of 
the Union to effect purposes deemed indispensable to the recon- 
struction of the Federal system. 

James Bkyce, The American Commonwealth.^ 256. 

DUNNING (1897) 

They found a constitutional basis for the law in the Thir- 
teenth Amendment. Slavery and involuntary servitude were 
by that article prohibited ; and, by the second section, Con- 
gress, and not the state legislatures, was authorized to enforce 
the prohibition. What constituted slavery and involuntary 
servitude, in the sense of the amendment? Slavery and lib- 
erty, it was answered, are contradictory terms. If slavery is 
prohibited, civil liberty must exist. But civil liberty consists 
in natural liberty, as restrained by human laws for the advan- 
tage of all, provided that these restraints be equal to all. A 
statute which is not equal to all is an encroachment on the lib- 
erty of the deprived persons, and subjects them to a degree of 
servitude. It is the duty of Congress, therefore, to counteract 
the effects of any such state laws. Thus the constitutionality 
of the bill was maintained. 

. . . The content of the proposed Fourteenth Amendment 
marks very accurately the progress that had been made by the 
spring of 1866 in ideas as to the extent to which reconstruction 
should go. In the first section, the desire of the conservative 
Republicans to put the civil rights of the negroes under the 
protection of the United States was gratified. The fourth 

1 Copyright, 1896, by the Macmillan Co. 



1896-1897] CRITICAL COMMENT 383 

guaranteed the financial integrity of the government, and thus 
satisfied those who feared some assertion of state rights that 
might legalize debts incurred in opposition to the national au- 
thority. These two provisions constituted the limitations upon 
the powers of the states that were generally recognized as un- 
avoidable consequences of the war. The second section of the 
amendment dealt with matters upon Avhich opinion in the domi- 
nant party was far from certain and harmonious. It embodied 
a very clumsy aud artificial solution of the suffrage problem. 
The alternative presented to the states, of enfranchising the 
blacks or losing proportionally in representation, was a mere 
temporary compromise between two party factions. It was the 
most that the friends of negro suffrage could secure at this 
stage of the process ; but there was no indication that they 
would be satisfied with this. The third section of the amend- 
ment was merely incidental to the conflict between Congress 
and President Johnson. The President's very free exercise of 
the pardoniug power interfered with the progress of the legis- 
lature's policy, and no method of checking this interference 
seemed so feasible as a constitutional amendment. As a whole, 
the amendment was tentative. It betokened a longing for a 
definite settlement of the two great questions of the day, tem- 
pered by dread of an adverse public sentiment. 

. . . The " fundamental conditions" which afforded the only 
basis for Congressional maintenance of negro suffrage in the 
restored states were regarded by a large majority of constitu- 
tional lawyers in both parties as of doubtful validity. Under 
the circumstances a further amendment to the constitution was 
the only resort that could be depended upon for the end de- 
sired. Hence the Fifteenth Amendment was, after a long and 
ardent discussion of the whole field of political philosophy, sent 
to the state legislatures by resolution finally passed February 
26, 1869. 

... On March 30, 1870, the ratification of the Fifteenth 
Amendment had been proclaimed, and just two months later 
the first enforcement act became law. By the policy thus ex- 
pressed the issue was definitely made up which ended in the 
undoing of the reconstruction. Seven unwholesome years were 
required to demonstrate that not even the government which 



384 RECONSTRUCTION AMENDMENTS [Ch. XXIII 

had quelled the greatest rebellion in history could maintain the 
freedmen in both security and comfort on the necks of their 
former masters. The demonstration was slow, but it was 
effective and permanent. 

William A. Dunning, Essays on the Civil War and Reconstruction. 93, 
252, passim. 

Mclaughlin (1899) 

It will be remembered that the Emancipation Proclamation 
declared free all slaves within those parts of the South then in 
open rebellion. This was confessedly a war measure — like 
any other confiscation of property, an act of war. It did not 
destroy slavery in the States not in rebellion. Moreover, some 
persons believed that the President had exceeded his authority 
in issuing such a proclamation. In the early part of 1864 a 
vote on the question of submitting a constitutional amendment 
abolishing slavery everywhere was taken into Congress. The 
necessary two-thirds vote could not be secured in the House, 
though the Senate passed the measure by a large majority. 
After the election, carried by the Republicans on a distinctly 
anti-slavery platform, abolition assumed new strength. The 
President in his annual message advocated the adoption of the 
amendment. A great debate in the House followed. The vote 
was one hundred and nineteen ayes to fifty-sis noes — seven 
more than the required two-thirds. In the homely, truthful 
phrase of Lincoln, the "great job" was ended. . . . 

The iDrinciple of the ordinance of 1787 was, in almost the 
exact words of that document, made applicable to the whole 
Union ; the great curse that had separated the American 
people into two bitterly hostile sections was to be cast aside 
forever. The hopes of the future were for reorganization, a 
re-establishment of sympathy and fellow-feeling between North 
and South, now that the cause of enmity and division was no 
more. As Lincoln pointed out, the amendment meant the 
"maintenance" of the Union. . . . 

It was next determined to put the Civil Rights Bill into the 
form of a constitutional amendment, where its principles would 
be permanent and safe from violation. The Fourteenth Amend- 
ment was therefore agreed upon and offered to the States (June, 



1897-1899] CRITICAL COMMENT 385 

1866), for adoption. ... It declared that no State should make 
or enforce any law abridging the " privileges or immunities of 
citizens of the United States," or deprive any person of " life, 
liberty or property without due process of law," or deny to any 
person "the equal protection of the laws." The Republicans 
saw that by the freeing of the blacks they bad actually increased 
the political strength of the Southern States, because the three- 
fifths rule would no longer apply, but all the negroes would be 
counted in determining the representative population. Some 
were desirous of giving the negroes the suffrage immediately by 
National act. Others hesitated. All, however, desired to pre- 
vent the Southern States from reaping this political advantage 
from emancipation, unless they allowed the blacks to vote. It 
was therefore decided that if the negroes were not given the 
suffrage by a State voluntarily, they should not be counted 
in determining the basis of representation. For these rea- 
sons the second section of the Fourteenth Amendment was 
added. . . . 

Such was the Fourteenth Amendment, by far the greatest 
change made in the Constitution, since its adoption. There 
was some difficulty, as we shall see, in securing its ratification, 
the Southern States refusing to accept it; two years passed 
before it was finally ratified (1868), but we may notice at this 
time how it modified the Constitution when once it became a 
part of the fundamental law. Before this amendment was 
passed the subject of suffrage was solely a State affair, as long 
as the State had a "republican form of government." So, too, 
the State had complete control over its citizens and could be as 
tyrannical as it saw fit, provided that it did not interfere with 
the relations between a person and the National Government or 
violate the few express prohibitions in the National Constitu- 
tion. By this amendment the nation intervened to protect the 
citizens of the State against unjust legislation or action of a 
State. Thus it will be seen the situation had entirely altered 
from what it was in 1788-90. 

Then it was thought necessary to shield the citizen from the 
possible tyranny of the National Government, and to this end 
the first ten amendments were adopted. . . . 

In 1869 the Fifteenth Amendment was submitted to the 

25 



^86 kncONSTRliCTtON AMENDMENTS [Ch. XXIII 

States for adoption. It declared: "The right of citizens of 
the United States to vote shall not be denied or abridged by the 
United States or by any State on account of race, colour, or 
previous condition of servitude." Secretary Fish announced, 
March 30, 1870, that it had " become valid to all intents and 
purposes, as part of the Constitution of the United States." 

The acceptance of the Fifteenth Amendment as part of the 
fundamental law of the nation did not do away with the troubles 
and distress that grew out of the rebellion. The corruption 
of the carpet-bag governments, built on negro suffrage, was 
proof enough that slavery had been a poor schoolmaster for 
freedom. 

Andrew C. McLa.ughlin, History of the American Nation. 463-483. 

HART (1899) 

So far as the existence of slavery went, the Thirteenth 
Amendment, declared to be in force in December, 1865, was a 
constitutional guarantee which superseded the revocable aboli- 
tion acts of the States reconstructed during that year ; and it 
took out of the list of conditions which might be imposed upon 
the States an acknowledgment of the freedom of the former 
slaves ; it superseded also the special conditions of the amnesty 
proclamations of Lincoln and Johnson. There still remained a 
necessity for statutes or constitutional amendments to define 
the judicial and other civil rights of the negro. . . . 

During 1865 both the legal and the economic status of the 
negroes were confused and unsatisfactory. . . . 

As soon as it became evident that Johnson had no interest 
in negro suffrage, and was willing to reinstate by his pardoning 
power a large proportion of those who had been concerned in 
the rebellion. Chase [Salmon P. Chase] found himself separated 
from the President, who no longer invited an expression of his 
opinion. At the same time his friends in the South assured 
him that, without protection from the United States, the Union 
men would be completely overborne and the freedman in 
danger. . . . 

Chase's sympathy now began to turn towards the congres- 
sional plan. . . . This was a legislative reversal of whatever 
was left of the Dred Scott decision. . . . 



1899] CntTICAL COMMENT 387 

The act was certain to arouse the opposition of the South, 
and was itself liable to repeal. It seemed therefore desirable 
to put its provisions into a constitutional amendment, which 
would forever protect the rights of the negroes and which at the 
same time would take out of the hands of the President the 
restoration of former rebels to their political status. . . . 

The Southern States duly paid the price of their readmission 
by ratifying the Fourteenth Amendment, and from 1868 they 
were gradually allowed to reoccupy seats in Congress. . . . 
As might have been expected, so soon as the Southern States 
were again admitted to seats in Congress there was a tendency 
in the South to put an end by violence to negro suffrage ; hence 
Congress passed a statute, the so-called Civil Rights Bill, un- 
der the Fourteenth and Fifteenth Amendments, to protect the 
negroes. 

Albert Bxjshnell Haet, Salmon Portland Chase. 335, 381. 



388 COLONIES AND DEPENDENCIES [Ch. XXIV 



Chaptee XXIV 

LIBERTY IN UNITED STATES COLONIES AND 
DEPENDENCIES (1898-1899) 

SUGGESTIONS 

These documents contain suggestions as to the prospective policy of 
government in the newly acquired teri'itorial possessions of Cuba, 
Porto Rico, and the Philippine Islands. 

The critical comment which follows must of necessity become in a 
few years a part of the contemporary exposition. It needs an his- 
torical perspective, which the future alone can give, for the proper 
discussion of these documents. 

But, as the making of history is as important a study as the 
chronicles of the past, the student should look at present issues 
with keen interest. He must appreciate that to-day's events belong 
to a succession of conditions in a general movement of progress; 
from whatever political point of view he approaches the subject he 
will find these historical conditions the same. 

Out of the vast amount of oratory and writing for and against the 
present policy of the administration, a few masters of constitutional 
history have been chosen to give expression in criticism. 

DOCUMENTS 
Extracts from President McKinley's Annual Message, Dec. 5, 1898 

Messages of ^^ ^^e message of April 11, 1898, I announced 
the President, that with this last overture in the direction of im- 
mediate peace in Cuba and its disappointing re- 
ception by Spain the effort of the Executive was 
brought to an end. I again reviewed the alter- 
native courses of action which had been proposed, 
concluding that the only one consonant with inter- 
national policy and compatible with our firm-set 
historical traditions was intervention as a neutral to 



X. 163-176. 



1898] TEXT 389 

stop the war and elieck the hopeless sacrifice of life, 
even though that resort involved " hostile constraint 
upon both the parties to the contest, as well to en- 
force a truce as to guide the eventual settlement." 
The grounds justifying that step were the interests 
of humanity, the duty to protect the life and prop- 
erty of our citizens in Cuba, the right to check injury 
to our commerce and people through the devastation 
of the island, and, most important, the need of re- 
moving at once and forever the constant menace 
and the burdens entailed upon our Government by 
the uncertainties and perils of the situation caused 
by the unendurable disturbance in Cuba. I said: 

"The long trial has proved that the object for 
which Spain has waged the war cannot be attained. 
The fire of insurrection may flame or may smoulder 
with varying seasons, but it has not been and it is 
plain that it cannot be extinguished by present 
methods. The only hope of relief and repose from 
a condition which can no longer be endured is the 
enforced pacification of Cuba. In the name of hu- 
manity, in the name of civilization, in behalf of 
endangered American interests which give us the 
right and the duty to speak and to act, the war 
in Cuba must stop." 

In view of all this the Congress was asked to By the 
authoiize and empower the President to take Message of 
measures to secure a full and final termination of ^ggg ' 
hostilities between Spain and the people of Cuba 
and to secure in the island the establishment of 
a stable government, capable of maintainiug order 
and observing its international obligations, insuring 
peace and tranquillity and the security of its citizens 
as well as our own, and for the accomplishment of 
those ends to use the military and naval forces of 
the United States as might be necessary, with added 
authority to continue generous relief to the stai'ving 
people of Cuba. 

The response of the Congress, after nine days of 



390 



COLONIES AND DEPENDENCIES [Ch. XXIV 



Cuban Inde- 
pendence. 

Duty of the 

United 

States. 



Constitution, 
Art. ii. sect. 
2, §1. 



Attitude of 
tlie United 
States to- 
wards Cuba. 



earnest deliberation, during which the almost unani- 
mous sentiment of your body was developed on 
every point save as to the expediency of coupling 
the proposed action with a formal recognition of the 
Republic of Cuba as the true and lawful government 
of that island — a proposition which failed of adop- 
tion — the Congress, after conference, on the 19th 
of April, by a vote of 42 to 35 in the Senate and 
311 to 6 in the House of Representatives, passed 
the memorable joint resolution declaring — 

' ' First. That the people of the island of Cuba are, 
and of right ought to be, free and independent. 

" Second. That it is the duty of the United States 
to demand, and the Government of the United States 
does hereby demand, that the Government of Spain 
at once relinquish its authority and government in 
the island of Cuba and withdraw its land and naval 
forces from Cuba and Cuban waters. 

" Third. That tlie President of the United States 
be, and he hereby is, directed and empowered to use 
the entire land and naval forces of the United States 
and to call into the actual service of the United 
States the militia of the several States to such ex- 
tent as may be necessary to carry these resolutions 
into effect. 

"Fourth. That the United States hereby dis- 
claims any disposition or intention to exercise sov- 
ereignty, jurisdiction, or control over said island 
except for the pacification thereof, and asserts its 
determination when that is accomplished to leave 
the government and control of the island to its 
people." 

This resolution was appi'oved by the Executive on 
the next day, April 20. . . . 

After the instruction reached General "Woodford 
on the morning of April 23, but before he could 
present it, the Spanish minister of state notified 
him that upon the President's approval of the joint 
resolution the Madrid Government, regarding the 



1898] TEXT 391 

act as " equivalent to an evident declaration of war," 

had ordered its minister in Washington to withdraw, 

thereby breaking off diplomatic relations between 

the two countries and ceasing all official communi- 

cation between their respective representatives, relations 

General Woodford thereupon demanded his pass- with Spain _ 

ports and quitted Madrid the same day. pS^ '^^ *^''' 

Spain having thus denied the demand of the 
United States and initiated that complete form of 
rupture of relations which attends a state of war, 
the executive powers authorized by the resolution 
were at once used by me to meet the enlarged con- 
tingency of actual war between sovereign states. 

I do not discuss at this time the Government or 
the future of the new possessions which will come 
to us as the result of the war with Spain. Such dis- 
cussion will be appropriate after the treaty of peace 
shall be ratified. In the meantime and until the 
Congress has legislated otherwise it will be my duty 
to continue the military governments which have 
existed since our occupation and give to the people 
security in life and property and encouragement 
under a just and beneficent rule. 

As soon as we are in possession of Cuba and „ 
have pacified the island it will be necessary to give policy. 
aid and direction to its people to form a govern- 
ment for themselves. This should be undertaken 
at the earliest moment consistent with safety and 
assured success. It is important that our relations 
with this people shall be of the most friendly char- 
acter and our commercial relations close and recip- 
rocal. It should be our duty to assist in every 
proper way to build up the waste places of the 
island, encourage the industry of the people, and Immediate 
assist them to form a government which shall be prove sani-' 
free and independent, thus realizing the best aspira- tary, educa- 
tions of the Cuban people. muScipal*^ 

Spanish rule must be replaced by a just, benevo- life. 



392 COLONIES AND DEPENDENCIES [Ch. XXIV 

lent, and humane government, created by the people 
of Cuba, capable of performing all international 
obligations, and which shall encourage thrift, in- 
dustry, and prosperity and promote peace and 
good will among all of the inhabitants, whatever 
may have been their relations in the past. Neither 
revenge nor passion should have a place in the new 
government. Until there is complete tranquillity in 
the island and a stable government inaugurated 
military occupation will be continued. 

Extracts from President McKinley's Annual Message, Dec. 5, 1899 

Congressional My Annual Message of last year was neces- 
Record bQ sarily devoted in great part to a consideration of 
29-36, passnn! the Spanish war and of the results it wrought and 
the conditions it imposed for the future. I am 
gratified to announce that the treaty of peace has 
restored friendly relations between the two powers. 
Effect has been given to its most important pro- 
visions. The evacuation of Porto Rico having al- 
ready been accomplislied on the 18th of October, 
1898, nothing remained necessary there but to con- 
tinue the provisional military control of the island 
until the Congress should enact a suitable govern- 
ment for the ceded territory. Of the character and 
scope of the measures to that end I shall treat in 
another part of this Message. 

The withdrawal of the authority of Spain from 
the island of Cuba was effected by the 1st of Jan- 
uary, so that the full re-establishment of peace 
found the relinquished territory held by us in trust 
for the inhabitants, maintaining, under the direc- 
tion of the Executive such government and control 
therein as should conserve public order, restore the 
productive conditions of peace so long disturbed 
by the instability and disorder which prevailed for 
the greater part of the preceding three decades, 
and build up that tranquil development of the do- 



1898-1899] TEXT 393 

mestic state whereby alone can be realized the high 
purpose, as proclaimed iu the joint resolution 
adopted by the Congress on the 19th of April, 
1898, by which the United States disclaimed any 
disposition or intention to exercise sovereignty, ju- 
risdictiou or control over Cuba, except for the |g ^f great" 
pacification thereof, and asserted its determination, significance, 
when that was accomplished to leave the govern- 
ment and control of the island to its people. The 
pledge contained in this resolution is of the highest 
honorable obligation and must be kept. 

I believe that substantial progress has been made 
in this direction. All the administrative measures Keforms be- 
adopted in Cuba have aimed to fit it for a regen- S^^- 
erated existence by enforcing the supremacy of law 
and justice ; by placing wherever practicable the 
machinery of administration in the hands of the 
inhabitants ; by instituting needed sanitary reforms ; 
by spreading education ; by fostering industry and 
trade ; by inculcating public morality, and, in short, 
by taking every rational step to aid the Cuban 
people to attain to that plane of self-conscious re- 
spect and self-reliant unity which fits an enlight- 
ened community for self-government within its 
own sphere, while enabling it to fulfil all outward 
obligations. 

This nation has assumed before the world a grave 
responsibility for the future good government of 
Cuba, We have accepted a trust the fulfilment of 
which calls for the sternest integrity of purpose and 
the exercise of the highest wisdom. The new Cuba Cuba'sfutm-e 
yet to arise from the ashes of the past must needs prosperity. 
be bound to us by ties of singular intimacy and 
strength if its enduring welfare is to be assured. 
Whether those ties shall be organic or conventional, 
the destinies of Cuba are in some rightful form and 
manner irrevocably linked with our own, but how 
and how far is for the future to determine in the 
ripeness of events. Whatever be the outcome, we 



394 COLONIES AND DEPENDENCIES [Ch. XXIV 

must see to it that free Cuba be a reality, not a 
name ; a perfect entity, not a hasty experiment 
bearing within itself the elements of failure. Our 
mission, to accomplish which we took up the wager 
of battle, is not to be fulfilled by turning adrift any 
loosely framed commonwealth to face the vicissi- 
tudes which too often attend weaker states whose 
natural wealth and abundant resources are offset by 
the incongruities of their political organization and 
the recurring occasions for internal rivalries to sap 
their strength and dissipate their energies. The 
greatest blessiug which can come to Cuba is the 
restoration of her agricultural and industrial pros- 
perity, which will give employment to idle men and 
re-establish the pursuits of peace. This is her chief 
and immediate need. . . . 

The future government of the Philippines rests 
with the Congress of the United States. Few 
Cono-ress to graver responsibilities have ever been confided to 
be held re- us. If we accept them in a spirit worthy of our 
governmenT ^"^^e and our traditions, a great opportunity comes 
in the Philip- with them. The islands lie under the shelter of 
pines. Q^j. gjjg_ Xhey are ours by every title of law 

and equity. They cannot be abandoned. If we 
desert them we leave them at once to anarchy and 
finally to barbarism. We fiiug them, a golden 
apple of discord, among the rival powers, no one 
of which could permit another to seize them un- 
questioned. Their rich plains and valleys would 
be the scene of endless strife and bloodshed. The 
advent of Dewey's fleet in Manila Bay instead 
of being, as we hope, the dawn of a new day of 
freedom and progress, will have been the beginning 
of an era of misery and violence worse than any 
which has darkened their unhappy past. The 
suggestion has been made that we could renounce 
our authority over the islands and, giving them 
independence, could retain a protectorate over 
them. This proposition will not be found, I am 



1899] TEXT 395 

sure, worthy of your serious attention. Such an Constitution, 
arrangement would involve at the outset a cruel ^^*- ^- s®^*- 
breach of faith. It would place the peaceable and ' 
loyal majority, who ask nothing better than to ac- 
cept our authority, at the mercy of the minority of 
armed insurgents. It would make us responsible 
for the acts of the insurgent leaders and give us no 
power to control them. It would charge us with 
the task of protecting them against each other and 
defending them against any foreign power with which 
they choose to quai-rel. In short, it would take from 
the Congress of the United States the power of de- 
claring war and vest that tremendous prerogative in 
the Tagal leader of the hour. 

It does not seem desirable that I sbould recom- 
mend at this time a specific and final form of gov- 
ernment for these islands. When peace shall be 
restored, it will be the duty of Congress to con- 
struct a plan of government which shall establish 
and maintain freedom and order and peace in 
the Philippines. The insurrection is still exist- 
ing, and when it terminates further information 
will be required as to the actual condition of affairs 
before inaugurating a permanent scheme of civil 
government. . . . 

No effort will be spared to build up the waste Future de- 
places desolated by war and by long years of mis- velopment 
government. We shall not wait for the end of Philippine 
strife to begin the beneficent work. We shall con- Islands, 
tinue, as we have begun, to open the schools and 
the churches, to set the courts in operation, to 
foster industry and trade and agriculture, and in 
every way in our power to make these people 
whom Providence has brought within our jurisdic- 
tion feel that it is their liberty and not our power, 
their welfare and not our gain, we are seeking to 
enhance. Our flag has never waved over any com- 
munity but in blessing. I believe the Filipinos will 
soon recognize the fact that it has not lost its gift 



396 



COLONIES AND DEPENDENCIES [Ch. XXIV 



Porto Kican 
policy. 



Removal of 
all military 
authority. 



Local self- 
government. 



of benediction in its world-wide journey to their 
shores. . . . 

The time is ripe for the adoption of a tempo- 
rary form of government for this island [Porto 
Rico]. . . . 

The system of civil jurisprudence now adopted 
by the people of this island is described by compe- 
tent lawyers who are familiar with it, as thoroughly 
modern and scientific, so far as it relates to matters 
of internal business, trade production, and social 
and private right in general. The cities of the 
island are governed under charters which prob- 
ably require very little or no change. So that with 
relation to matters of local concern and private 
right, it is not probable that much, if any, legis- 
lation is desirable ; but with reference to public 
administration and the relations of the island to 
the Federal Government, there are many matters 
which are of pressing urgency. . . . 

It is desirable that the government of the island 
under the law of belligerent right, now maintained 
through tlie Executive Department, should be super- 
seded by an admmistration entirely civil in its 
nature. For present purposes I recommend that 
Congress pass a law for the organization of a tem- 
porary government, which shall provide for the 
appointment by the President, subject to confir- 
mation by the Senate, of a governor and such other 
officers as the general administration of the island 
may require, and that for legislative purposes upon 
subjects of a local nature not partaking of a Fed- 
eral character, a legislative council, composed partly 
of Porto Ricans and partly of citizens of the United 
States, shall be nominated and appointed by the 
President, subject to confirmation by the Senate, 
their acts to be subject to the approval of the Con- 
gress or the President prior to going into effect. In 
the municipalities and other local subdivisions I 
recommend that the principle of local self-govern- 



1899] TEXT 397 

ment be applied at once, so as to enable the intel- 
ligent citizens of the island to participate in their 
own government and to learn by practical experi- 
ence the duties and requirements of a self-contained 
and self-governing people. I have not thought it 
wise to commit the entire government of the island 
to oiScers selected by the people, because I doubt 
whether in habits, training and experience they are 
such as to fit them to exercise at once so large a de- 
gree of self-government; but it is my judgment 
and expectation that they will soon arrive at an 
attainment of experience and wisdom and self-con- 
trol that will justify conferring upon them a much 
larger participation in the choice of their insular 
oflScers. 

The fundamental requirement for these people Eacial char- 
as for all people, is education. The free school- acteristics to 
house is the best preceptor for citizenship. In the ered"^^^*^" 
introduction of modern educational methods care, 
however, must be exercised that changes be not 
made too abruptly and that the history and racial 
peculiarities of the inhabitants shall be given due 
weight. Systems of education in these new pos- 
sessions founded upon common-sense methods, 
adapted to existing conditions and looking to the ernment ; 
future moral and industrial advancement of the civil rights, 
people, will commend to them in a peculiarly effec- 
tive manner the blessings of free government. 

The love of law and the sense of obedience and 
submission to the lawfully constituted judicial tri- 
bunals are embedded in the hearts of our people, 
and any violation of these sentiments and disre- 
gard of their obligations justly arouses public con- 
demnation. The guarantees of life, liberty, and of 
civil rights should be faithfully upheld ; the right 
of trial by jury respected and defended. 



398 COLONIES AND DEPENDENCIES [Ch. XXIV 



CONTEMPORARY EXPOSITION 

PRESIDENT McKINLEY (1899) 

We have now ended the war with Spain. The treaty has 
been ratified by the votes of more than two-thirds of the Senate 
of the United States and by the judgment of nine-tenths of its 
people. No nation was ever more fortunate in war or more 
honourable in its negotiations in peace. Spain is now elinxinated 
from the problem. It remains to ask what we shall now do. 
I do not intrude upon the duties of Congress or seek to antici- 
pate or forestall its action. I only say that the treaty of peace, 
honourably secured, having been ratified by the United States, 
and, as we confidently expect, shortly to be ratified in Spain, 
Congress will have the power, and I am sure the purpose, to do 
what in good morals is right and just and humane for these 
peoples in distant seas. 

It is sometimes hard to determine what is best to do, and the 
best thing to do is oftentimes the hardest. The prophet of evil 
would do nothing because he flinches at sacrifice and effort, and 
to do nothing is easiest and involves the least cost. On those 
who have things to do there rests a responsibility which is not 
on those who have no obligations as doers. If the doubters 
were in a majority, there would, it is true, be no labour, no sac- 
rifice, no anxiety and no burden raised or carried ; no contribu- 
tion from our ease and purse and comfort to the welfare of 
others, or even to the extension of our resources to the welfare 
of ourselves. There would be ease, but alas! there would be 
nothing done. 

But grave problems come in the life of a nation, however 
much men may seek to avoid them. They come without our 
seeking ; why, we do not know, and it is not always given us to 
know; but the generation on which they are forced cannot 
avoid the responsibility of honestly striving for their solution. 
We may not know precisely how to solve them, but we can 
make an honest effort to that end, and if made in conscience, 
justice and honor it will not be in vain. 

The future of the Philippine Islands is now in the hands of 
the American people. Until the treaty was ratified or rejected 



1899] CONTEMPORARY EXPOSITION 399 

the Executive Department of this government could only pre- 
serve the peace and protect life and property. . . . 

I have no light or knowledge not common to my countrymen. 
I do not prophesy. The present is all absorbing to me, but I 
cannot bound my vision by the blood-stained trenches around 
Manila, where every red drop, whether from the veins of an 
American soldier or a misguided Filipino, is anguish to my 
heart ; but by the broad range of future years, when that group 
of islands, under the impulse of the year just passed, shall have 
become the gems and glories of those tropical seas ; a land of 
plent}' and of increasing possibilities ; a people redeemed from 
savage indolence and habits, devoted to the arts of peace, in 
touch with the commerce and trade of all nations, enjoying the 
blessings of freedom, of civil and religious liberty, of education 
and of homes, and whose children and children's children shall 
for ages hence bless the American Republic because it emanci- 
pated and redeemed their fatherland and set them in the path- 
way of the world's best civilization. 

William McKinlby, Speech delivered at the Home Market Club, in Boston 
Herald, February 17, 1899. 

SECRETARY LONG (1899) 

But, on the other hand, is the view held, I think, by the 
great majority of our people that we cannot thus easily, having 
once put our hands to the plough, look back, and that events 
not within our control have brought us to responsibilities which 
we cannot disregard and let alone, but which we must face and 
meet. The matter is one of great moment. I most heartily 
wish it had never confronted us. I wish the world would kindly 
let up for a while and not move so fast. I wish, also, that 
youth would stay. I would rather be a boy again than to be 
Secretary of the Navy, as I am, or President of the United 
States, as of course I could be if I would yield to the solicita- 
tions of my friends and accept the office. But I think it is a 
mistake to say that it is beyond the abilit}'^ of the American peo- 
ple to deal with a problem with which other nations have suc- 
cessfully dealt, or that it is a harder problem than many problems 
which are upon us already. 

The problem of the immense accumulations of wealth ; the 



400 COLONIES AND DEPENDENCIES [Ch. XXIV 

municipal problem of our great cities, soon gathering within their 
limits more than balf the population of the country ; the prob- 
lems of capital and labor ; the problems of social crimes, intem- 
perance and political integrities, are even harder and fraught 
with graver dangers. Indeed, I am not sure that this new fric- 
tion in the far-off tropics may not be, when applied to these 
older maladies in the body politic, a sort of what the physicians 
call a counter-irritant — an outlet for the pent-up fevers now in 
the national blood. 

There are those who regard every new crisis as what they 
call " the beginning of the end." But this phrase is like the 
foolish nurse's cry of " ghost " to a child. The beginning of 
the end was long ago — at the very birth of the Republic. God 
has so ordered the laws of growth that no life, of plant, or man, 
or nation, works out its destiny and bears its fruit except by 
ripening to its completion. First the blade, then the ear, then 
the full corn in the ear. The glory of Greece and of Rome is 
in the culmination of their civilization, art, literature and politi- 
cal power ; and therein is their contribution to the higher civili- 
zations which have succeeded. 

So it must needs be with the great powers of to-day. Great 
Britain and Germany and America. . . . 

Why doubt and repine, when the time of doubting and repin- 
ing is inexorably past, and when doubting and repining can now 
do no good? Why shall not the United States, now that these 
lauds and tribes have been intrusted to its disposition, enter upon 
the trust thus imposed upon it, with the determination that, as it 
began by freeing them from the yoke of oppression, it will go 
on and insure them still larger blessings of liberty and civiliza- 
tion, and will so bear itself toward them that in securing their 
welfare it shall also promote its own, and, as always hap- 
pens when men or nations co-operate in the spirit of justice 
and good will, the reward shall come to both in their mutual 
increase? . . . 

Meantime, our duty is to meet the responsibility that is upon 
us. Undoubtedly it would be easier if we could shift it from 
our shoulders and lay it down. It is with a wrench that any 
man, especially any son of New England familiar with its tra- 
ditions and recalling its charms of provincial life, becomes aware 



1899-1900] CONTEMPORARY EXPOSITION 401 

that these must, betimes, give way to larger demands and more 
trying exigencies. 

And yet, the fields that are before us are not altogether un- 
trodden, [t is not a new thing in the history of the world for 
an enlightened and civilized nation to deal with the less fortu- 
nate islands of remote seas. 

A Christian nation should not lose heart at the opportunity of 
carrying its education, its industries, its institutions and its un- 
told blessings to other and less fortunate people. For one, I 
trust with all my heart that the result of our new relations with 
the Philippines may be to aid them to the acquirement of the 
comforts, happiness and benefactions of our civilization ; to 
educate them to their political elevation and to help them to 
the establishment of their own self-government and their own 
free existence. 

John D. Long, Address before the Home Market Club, in Boston Herald, 
February 17, 1899. 

R. OLNET (1900) 

Hereafter as heretofore, our general policy must be and will 
be non-interference in the internal affairs of European states — 
hereafter as heretofore we shall claim paramountcy in things 
purely American — and hereafter as heretofore we shall antago- 
nize any attempt by an European Power to forcibly plant its 
flag on the American continents. It cannot be doubted, how- 
ever, that our new departure not merely unties our hands but 
fairly binds us to use them in a manner we have thus far not 
been accustomed to. We cannot assert ourselves as a Power 
whose interests and sympathies are as wide as civilization with- 
out assuming obligations corresponding to the claim — obliga- 
tions to be all the more scrupulously recognized and performed 
that they lack the sanction of physical force. The first duty of 
every nation, as already observed, is to itself — is the promo- 
tion and conservation of its own interests. Its position as an 
active member of the international fainily does not require it 
ever to lose sight of that principle. But, just weight being 
given to that principle, and its abilities and resources and op- 
portunities permitting, there is no reason why the United States 
should not act for the relief of suffering humanity and for the 

26 



402 COLONIES AND DEPENDENCIES [Ch. XXIV 

advancement of civilization wherever and whenever such action 
would be timely and effective. Should there, for example, be a 
recurrence of the Turkish massacres of Armenian Christians, 
not to stop them alone or in concert with others, could we do 
so without imperilling our own substantial interests, would be 
unworthy of us and inconsistent with our claims and aspirations 
as a great Power. We certainly could no longer shelter our- 
selves behind the time-honored excuse that we are an American 
Power exclusively, without concern with the affairs of the world 
at large. 

Richard Olney, Growth of our Foreign Policy, in l^he Atlantic Monthly, 
LXXXV. 289-301 (March, 1900). 

CRITICAL COMMENT 

CHARLES FRANCIS ADAMS (1898) 

Next as regards our fundamental principles of equality of 
human rights, and the consent of the governed as the only Just 
basis of all government. The presence of the inferior races on 
our own soil, and our new problems connected with them in our 
dependencies, have led to much questioning of the correctness 
of those principles, which, for its outspoken frankness, at least, 
is greatly to be commended. It is argued that these, as princi- 
ples, in the light of modern knowledge and conditions, are of 
doubtful general truth and limited application. True, when 
confined and carefully applied to citizens of the same blood 
and nationality ; questionable, when applied to human beings 
of different race in one nationality; manifestly false, in the case 
of races less developed, and in other, especially tropical, coun- 
tries. As fundamental principles, it is admitted, they were 
excellent for a young people struggling into recognition and 
limiting its attention narrowly to what only concerned itself; 
but have we not manifestly outgrown them, now that we our- 
selves have developed into a great World Power? For such 
there was and necessarily always will be, as between the superior 
and the inferior races, a manifest common sense foundation in 
caste, and in the rule of might when it presents itself in the 
form of what we are pleased to call Manifest Destiny. As to 
government being conditioned on" the consent of the governed, 



1898] CRITICAL COMMENT 403 

it is obviously the bounclen duty of the superior race to hold the 
inferior race in peaceful tutelage, and protect it against itself ; 
and, furthermore, when it comes to deciding the momentous 
question of what races are superior and what inferior, what 
dominant and what subject, that is of necessity a question to 
be settled between the superior race and its own conscience ; 
and one in regard to the correct settlement of which it indicates 
a tendency at once unpatriotic and " pessimistic," to assume 
that America could by any chance decide otherwise than cor- 
rectly. Upon that score we must put implicit confidence in the 
sound instincts and Christian spirit of the dominant, that is, 
the stronger race. 

It is the same with that other fundamental principle with 
which the name of Lexington is, from the historical point of 
view, so closely associated, — I refer, of course, to the revolu- 
tionary contention that representation is a necessary adjunct to 
taxation. This principle also, it is frankly argued, we have 
outgrown, in presence of our new responsibilities ; and, as be- 
tween the superior and inferior races, it is subject to obvious 
limitations. Here again, as between the policy of the " Open 
Door " and the Closed-Colonial-Market policy, the superior race 
is amenable to its own conscience only. It will doubtless on 
all suitable and convenient occasions bear in mind that it is a 
" Trustee for Civilization." 

Charles Francis Adams, Imperialism and the Tracks of Our Forefathers. 
(Address delivered at Lexington, December 30, 1898.) 18. 

RANDOLPH (1898) 

The peace of Cuba will be our first concern, but we must not 
set up an unattainable standard of order for the Cubans, and 
then annex their island on the plea that they cannot govern it. 
Cuba may wait long for the order which we prescribe for our- 
selves, and indeed the peace of a Spanish- American state of the 
best type is not the peace of the United States. 

The early installation of a Cuban government is desirable not 
only for the sake of the Cubans but because pending this event 
the United States must undertake the provisional control of the 
island. The undertaking will be sufficiently vexatious, even 
assuming, as I do, that it will be confided to trained soldiers 



404 COLONIES AND DEPENDENCIES [Ch. XXIV 

and not to uniformed politicians. Yet it will be better to pro- 
long our control than to recognize prematurely a Cuban gov- 
ernment. When the authority of Spain shall disappear, the 
authority of the United States must replace it and prevail until 
a responsible local government shall be ready to assume control. 
The government of Cuba, which shall be definitely recognized 
by the United States, and may thereafter claim recognition 
from other nations, must be organized or ratified by the people 
of Cuba freely deliberating and acting under the protection of 
our impartial authority. Although the United States will not 
assume to present Cuba with a plan of government, they should 
condition recognition upon the adoption of a plan which shall 
establish a new nation upon principles of justice. 

Carman F. Randolph, Notes on the Foreign Policy of the United States. 
6-7. 

W. G. SUMNER (1899) 

War, expansion, and imperialism are questions of statesman- 
ship and of nothing else. I disregard all other aspects of them, 
and all extraneous elements which have been intermingled with 
them. I received the other day a circular of a new educational 
enterprise in which it was urged that, on account of our new 
possessions, w^e ought now to devote especial study to history, 
political econom}^ and what is called political science. I asked 
myself, why? What more reason is there for pursuing these 
studies now on behalf of our dependencies than there was be- 
fore to pursue them on behalf of ourselves? In our proceed- 
ings of 1898, we made no use of whatever knowledge we had 
of any of these lines of study. The original and prime cause 
of the war was that it was a move of partisan tactics in the 
strife of parties at Washington. As soon as it seemed resolved 
upon, a number of interests began to see their advantage in it, 
and hastened to further it. It was necessary to make appeals 
to the public which would bring quite other motives to the sup- 
port of the enterprise, and win the consent of classes who would 
never consent to either financial or political jobbery. Such 
appeals were found in sensational assertions which we had no 
means to verify, in phrases of alleged patriotism, in statements 
about Cuba and the Cubans which we now know to have been 
entirely untrue. 



1898-1899] CRITICAL COMMENT 405 

Where was the statesmanship of all this? If it is not an 
established rule of statecraft that a statesman should never 
impose any sacrifices on his people for anything but their own 
interests, then it is useless to study political philosophy any 
more, for this is the alphabet of it. It is contrary to honest 
statesmanship to imperil the political welfare of the state for 
party interests. It was unstatesmanlike to publish a solemn 
declaration that we would not seize any territory, and especially 
to characterize such action in advance as " criminal aggression," 
for it was morally certain that we should come out of any war 
with Spain with conquered territory on our hands, and the peo- 
ple who wanted the war, or who consented to it, hoped that we 
would do so. 

We talk about " liberty " all the time in a glib and easy way, 
as if liberty was a thing that men could have if they want it, 
and to any extent to which they want it. It is certain that a 
very large part of human liberty consists simply in the choice 
either to do a thing or to let it alone. If we decide to do it, a 
whole series of consequences is entailed upon us in regard to 
which it is exceedingly difficult, or impossible, for us to exer- 
cise any liberty at all. The proof of this from the case before 
us is so clear and easy that I need spend no words upon it. 
Here, then, you have the reason why it is a rule of sound 
statesmanship not to embark on an adventurous policj'. A 
statesman could not be expected to know in advance that we 
should come out of the war with the Philippines on our hands, 
but it belongs to his education to warn him that a policj^ of 
adventure and of gratuitous enterprise would be sure to entail 
embarrassments of some kind. What comes to us in the evolu- 
tion of our own life and interests, that we must meet ; what we 
go to seek which lies beyond that domain, is a waste of our en- 
ergy and a compromise of our liberty and welfare. If this is 
not sound doctrine, then the historical and social sciences have 
nothing to teach us which is worth any trouble. . . . 

We assume that what we like and practise, and what we 
think better, must come as a welcome blessing to Spanish- 
Americans and Filipinos. This is grossly and obviously 
untrue. They hate our ways. They are hostile to our ideas. 
Our religion, language, institutions, and manners offend them. 



406 COLONIES AND DEPENDENCIES [Ch. XXIV 

They like their own ways, and if we appear amongst them as 
rulers, there will be social discord on all the great departments 
of social interest. The most important thing which we shall 
inherit from the Spaniards will be the task of suppressing re- 
bellions. If the United States takes out of the hands of Spain 
her mission, on the ground that Spain is not executing it well, 
and if this nation, in its turn, attempts to be school-mistress to 
others, it will shrivel up into the same vanity and self-conceit 
of which Spain now presents an example. To read our current 
literature one would think that we were already well on the way 
to it. Now, the great reason why all these enterprises, which 
begin by saying to somebody else : We know what is good for 
you, better than you know j^ourself, and we are going to make 
you do it — are false and wrong, is that they violate liberty ; 
or, to turn the same statement into other words : the reason 
why liberty, of which we Americans talk so much, is a good 
thing, is, that it means leaving people to live out their own 
lives in their own way, while we do the same. If we believe in 
liberty, as an American principle, why do we not stand by it? 
Why are we going to throw it away to enter upon a Spanish 
policy of dominion and regulation? 

William G. Sumner, The Conquest of the United States hy Spain. 
SCHURZ (1899) 

If ever, it behooves the American people to think and act 
with calm deliberation, for the character and future of the re- 
public and the welfare of its people now living and yet to be 
born are in unprecedented jeopardy. To form a candid judg- 
ment of what this republic has been, what it may become, and 
what it ought to be, let us first recall to our minds its condition 
before the recent Spanish War. 

Our government was, in the words of Abraham Lincoln, "the 
government of the people, by the people, and for the people." 
It was the noblest ambition of all true Americans to carry this 
democratic government to the highest degree of perfection in 
justice, in probity, in assured peace, in the security of human 
rights, in progressive civilization ; to solve the problem of pop- 



1899] CRITICAL COMMENT 407 

ular self-government on the grandest scale, and thus to make 
this republic the example and guiding star of mankind. 

We had invited the oppressed of all nations to find shelter 
here, and to enjoy with us the blessings of free institutions. 
They came by the millions. Some were not so welcome as 
others, but under the assimilating force of American life in 
our temperate climate, which stimulates the working energies, 
nurses the spirit of orderly freedom, and thus favors the growth 
of democracies, they become good Americans, most in the first, 
all in the following generations. And so with all the blood- 
crossings caused by the motley immigration, we became a sub- 
stantially homogeneous people, united by common political 
beliefs and ideals, by common interests, laws, and aspira- 
tions, — in one word, a nation. . . . 

Then came the Spanish War. A few vigorous blows laid the 
feeble enemy helpless at our feet. The whole scene seemed to 
have suddenly changed. According to the solemn proclamation 
of our government, the war had been undertaken solely for the 
liberation of Cuba, as a war of humanity and not of conquest. 
But our easy victories had put conquest within our reach, and 
when our arms occupied foreign territory, a loud demand arose 
that, pledge or no pledge to the contrary, the conquests should 
be kept, even the Philippines on the other side of the globe, 
and that as to Cuba herself, independence would only be a pro- 
visional formality. Why not? was the cry. Has not the career 
of the republic almost from its very beginning been one of ter- 
ritorial expansion? Has it not acquired Louisiana, Florida, 
Texas, the vast countries that came to us through the Mexican 
War, and Alaska, and has it not digested them well? Were not 
those acquisitions much larger than those now in contempla- 
tion? If the republic could digest the old, why not the new? 
What is the difference? . . . 

. . . This difference called forth that great psean of human 
liberty, the American Declaration of Independence, — a docu- 
ment which, I regret to say, seems, owing to the intoxication of 
conquest, to have lost much of its charm among some of our 
fellow citizens. Its fundamental principle was that " govern- 
ments derive their just powers from the consent of the gov- 
erned." We are now told that we have never fully lived up to 



408 COLONIES AND DEPENDENCIES [Ch. XXIV 

that principle, aud that, therefore, in our new policy we may 
cast it aside altogether. But I say to you that, if we are true 
believers in democratic government, it is our duty to move in 
the direction toward the full realization of that principle, and 
not in the direction away from it. If you tell me that we can- 
not govern the people of those new possessions in accordance 
with that principle, then I answer that this is a good reason why 
this democracy should not attempt to govern them at all. 

If we do, we shall transform the government of the people, 
for the people, and by the people, for which Abraham Lincoln 
lived, into a government of one part of the people, the strong, 
over another part, the weak. Such an abandonment of a fun- 
damental principle as a permanent policy may at first seem to 
bear only upon more or less distant dependencies, but it can 
hardly fail in its ultimate effects to disturb the rule of the same 
principle in the conduct of democratic government at home. 
Aud 1 warn the American people that a democracy cannot so 
deny its faith as to the vital conditions of its being, it cannot 
long play the king over subject populations, without creating 
within itself ways of thinking and habits of action most dan- 
gerous to its own vitality, — most dangerous especially to those 
classes of society which are the least powerful in the assertion, 
and the most helpless in the defence of their rights. Let the 
poor and the men Avho earn their bread by the labor of their 
hands pause and consider well before they give their assent to 
a policy so deliberately forgetful of the equality of rights. 

Carl Schtjez, American Imperialism. (Address before the University of 
Chicago, January 4, 1899.) 9-11. 



HOAR (1899) 

The question is this : Have we the right, as doubtless we 
have the physical power, to enter upon the government of ten 
or twelve million subject people without constitutional restraint? 
Of that question the Senator from Connecticut takes the affirm- 
ative. And upon that question I desire to join issue. 

Mr. President, I am no strict constructionist. I am no 
alarmist. I believe this country to be a nation, a sovereign 
nation. I believe Congress to possess all the powers which are 



1899] CRITICAL COMMENT 409 

necessary to accomplish under the most generous and liberal 
construction the great objects which the men who framed the 
Constitution and the people who adopted it desired to accom- 
plish by its instrumentality. I was bred, I might almost say I 
was born, in the faith, which I inherited from the men whose 
blood is in my veins, of the party of Hamilton and Washington 
and Webster and Sumner, and not in that of Madison or Cal- 
houn or the strict constructionists. The men by whose hands 
Connecticut signed the Declaration of Independence, who in 
her behalf helped frame the Constitution, who represented her 
in either House of Congress in the great Administrations of 
Washington and John Adams, were of that way of thinking. 
But the man of them most thoroughgoing and extreme, Ham- 
ilton himself, Ellsworth himself, Adams himself, would have 
looked with amazement if not with horror upon the doctrines 
asserted by the honorable Senator from Connecticut to-day. 
I am not speaking only of his denial of the great doctrine 
of constitutional liberty and of political morality that gov- 
ernment derives its just power from the consent of the gov- 
erned, and that any people has the right, when it thinks its 
existing government is destructive of the great ends of life, 
liberty, and happiness, to throw off the old government and 
make a new one for itself, and certainly if it have that right no 
other man has the right to impose one on it against its consent. 
But I am not speaking of that. I am speaking of his aston- 
ishing and most extravagant construction of the powers of 
Congress under the Constitution. . » . 

Now, let us trace for a moment the history of this beautiful, 
august, pure, invincible sovereign of ours. The idea that our 
fathers intended to clothe it with such a sovereignty is as re- 
pugnant to me as the idea that because God created a seraph, 
or an archangel, or even a man in his own image, he intended 
that he should be at liberty commit murder or robbery or any 
form of bestiality because he had clothed him with the physical 
power to accomplish it. 

Expositio contemporanea niaxime valet. The great contem- 
poraneous exposition of the Constitution is to be found in the 
Declaration of Independence. Over every clause, syllable, 
and letter of the Constitution the Declaration of IndependencQ 



410 COLONIES AND DEPENDENCIES [Ch. XXIV 

pours its blazing torchlight. The same men framed it. The 
same States confirmed it. The same people pledged their lives, 
their fortunes, and their sacred honor to support it. The great 
characters in the constitutional convention were the great char- 
acters of the Continental Congress. There are undoubtedly, 
among its burning and shining truths, one or two which the 
convention that adopted it were not prepared themselves at 
once to put into practice. But they placed them before their 
countrymen as an ideal moral law to which the liberty of the 
people was to aspire and to ascend as soon as the nature of 
existing conditions would admit. Doubtless slavery was in- 
consistent with it, as Jefferson, its great author, has in more 
than one place left on record. But at last in the strife of a 
great civil war the truth of the Declaration prevailed and the 
falsehood of slavery went down, and at last the Constitution of 
the United States conformed to the Declaration and it has be- 
come the law of the land, and its great doctrines of liberty are 
written upon the American flag wherever the American flag 
floats. Who shall haul them down? . . . 

When the delegates of the Old Thirteen set their hands to 
that Declaration, the people of the United States stepped 
forth armed in its invincible panoply, like Minerva from the 
head of Jove, the greatest world power the world had ever 
seen. The seed they planted on that July morning grew up 
into crowns and sceptres. Whenever we depart from it the 
world power of the Great Republic is at an end. . . . 

At the close of the nineteenth century the American Republic, 
after its example in abolishing slavery has spread through the 
world, is asked by the Senator from Connecticut to adopt a 
doctrine of constitutional expansion on the principle that it is 
right to conquer, buy, and subject a whole nation if we happen 
to deem it for their good, — for their good as we conceive it, 
and not as they conceive it. 

Mr. President, Abraham Lincoln said, " No man was ever 
created good enough to own another." No nation was ever 
created good enough to own another. 

No single American workman, no humble American home, 
will ever be better or happier for the constitutional doctrine 



1898-1900] CRITICAL COMMENT 411 

which the Senator from Connecticut proclaims. If it be adopted 
here not only the workman's Avages will be diminished, not only 
will the burden of taxation be increased, not only, like the 
peasant of Europe, will he be born with a heavy debt about 
his neck and will stagger with an armed soldier upon his back, 
but his dignity will be dishonored and his manhood discrowned 
by the act of his own Government. 

George F. Hoar, No Constitutional Power to conquer Foreign Nations and 
hold their People in Subjection against their Will. (Speech in the Senate, 
January 9, 1899.) 11-40. 

BURGESS (1899) 

I cannot but regard as sophistical the argument for taking 
the Philippine Islands that is drawn from the fact of our hav- 
ing taken Louisiana, Florida, Texas, California, New Mexico, 
Oregon and even Alaska. All of these districts, except per- 
haps Alaska, are geographically natural parts of the United 
States. They were necessary to the national development of 
the United States. Their continued possession by other pow- 
ers would have been a direct danger to the interests, if not to 
existence, of the United States. This latter proposition ap- 
plies also, in some degree, to Alaska. The argument drawn 
from our past expansion would be more sound if it were used 
in reference to Cuba. Cuba commands the entrances to the 
Gulf of Mexico and the approaches from the sea to the south- 
ern boundary of the United States. The possession of this 
island by the United States may become — is even likely to 
become — a national necessity. But the Philippine Islands 
stand in no such relation to us. The principle of expansion 
which we have heretofore followed is national expansion. The 
expansion involved in the occupation of the Philippines is 
world-empire expansion. These are not the same thing ; and 
while successful world-empire expansion may require a pre- 
ceding national expansion, a successful national expansion 
does not require world-empire expansion. In a word, the steps 
in national expansion are not precedents for world-empire 
expansion. 

John W. Burgess, S'ow may the United States govern its Extra- Continental 
Territory ? in Political Science Quarterly, XIV. 2-3 (March, 1899), 



412 COLONIES AND DEPENDENCIES [Ch. XXIV 

HART (1900) 

At the end of the Revolution the United States had a most 
excellent opportunity to remain within the former limits of the 
thirteen colonies, for in the peace negotiations of 1782 and 
1783 it was the distinct purpose of France and Spain, and at 
times of England, to make the water-shed of the Appalachian 
chain practically the western boundary. . . . 

Three different areas, adjacent to the original English col- 
onies, were to be disposed of in the negotiations. First, some 
of the Americans doubted whether ' ' we could ever have a 
real peace, with Canada or Nova Scotia in the hands of the 
English." The second region was the northwest territory, in 
which the Americans had the right of occupation by conquest 
in a considerable part of the posts. The third area was the 
territory south of the Ohio River, most of which had not been 
under the jurisdiction of any English colony prior to the 
Revolution. 

The three arch-expansionists of that period, Franklin, Jay, 
and Adams, without much difficulty secured English consent to 
making the Mississippi the western boundary,- as required by 
the instruction of Congress of 1779. . . . 

Having thus inaugurated the policy of territorial expan- 
sion, our forefathers next set themselves to the great task 
of furnishing a colonial government, and during the ten years 
from 1780 to 1790 this was one of the chief concerns of 
Congress. . . . 

The framers of the Constitution perfectly understood that 
the power which they gave Congress to make war included the 
power to conquer territory, and that the power to make treaties 
included the authority to annex by peaceful concession. . . . 

During the first decade under the Federal Constitution the 
nation did not yet know its own strength, or venture to predict 
its own future. . . . 

The geographical and political conditions of the time speedily 
revived the spirit of political extension. Americans could put 
up with the exclusion from the lower Mississippi and the Gulf 
so long as that territory was in the hands of weak and declin- 
ing Spain. European wars and treaties now began, however, 



1900] CRITICAL COMMENT 413 

to have far-reaching effects, extending to the New "World, 
for in 1795 and 1796 the French government began to urge 
upon Spain the transfer of the former French province of 
Louisiana. . . . 

People speak of the "Louisiana negotiations" as though 
there had been two sides and a balancing of propositions. In 
reality the province was thrown to the United States, as the 
Caliph Harun-al-Raschid might have given a palace to a poor 
merchant who had admired the portico. . . . 

So evident were the practical advantages of annexing 
Louisiana that much of the anti-annexation argument was 
directed against the future creation of a new State, from 
which would come senators and representatives. . . . 

The favorite objection was the distance of the new terri- 
tory. . . . 

Another objection was the cost of the territory. . . . 

To sum up the objections to the treaty : France had no 
right to cede it ; the United States had no right to receive it, 
under the conditions of the treat}^ ; it was not worth having on 
any terms ; it was vast ; it would disturb the balance of the 
Union ; it would draw valued inhabitants from other parts of 
the United States ; it would poison the settlers ; the treaty was 
an extra-constitutional proceeding ; the President and Senate 
did not represent the opinion of the country ; and patriotic 
men ought to oppose " such a pernicious measure as the admis- 
sion of Louisiana, of a world, and such a world, into our 
Union." . . . 

While members of Congress, as well as people outside, 
were discussing the question of Louisiana, Jefferson had al- 
ready dispatched Lewis and Clarke to explore the upper Mis- 
souri and find a practicable road across to the Pacific ; but 
though bold to enlarge his country, he still had constitutional 
qualms, which were not removed by the Senate vote of 24 to 
7 ratifying the treaty, nor by the House vote of 90 to 25 grant- 
ing the necessary appropriation. Jefferson drew up a constitu- 
tional amendment intended to be an indemnity for him, and to 
define the principles of annexation for later times ; but his own 
friends laughed at the idea, and from that day to this the terri- 
tory has remained a part of the United States, with no further 
constitutional controversies. 



414 COLONIES AND DEPENDENCIES [Ch. XXIV 

If this study were carried farther forward, the same evident, 
hearty, and unappeasable Anglo-Saxon land-hunger would be 
found appearing in the War of 1812, in the boundary contro- 
versies with Great Britain, in the annexations of Texas and 
California. Whether that was a right and wholesome hunger 
must be determined from the last fifty years of national his- 
tory. But wise or unwise, far-seeing or haphazard, consecutive 
or accidental, good or evil, the policy of our forefathers was a 
policy of territorial extension, and they met and supposed 
they had surmounted most of the problems which have now 
returned to vex American public men, and to give concern 
to those who love their country. 

Albert Bushnell Hakt, Territorial Problems, in Harper's Monthly, 
Vol. I. pp. 312-320 passim (January, 1900). 



ABBOTT (1900) 

We have believed and we still believe that the war against 
Spain was a most just and necessary war ; that on it we had a 
right to invoke " the considerate judgment of mankind and the 
gracious favor of Almighty God," and that by both it has been 
sanctioned ; that if by his providence God has ever signified 
his approval of war, he did so by the unparalleled successes of 
our navy at Manila and Santiago ; that if ever war received 
popular approval from the common people hostile to hierarchi- 
cal and oligarchic oppression, our war against Spain has had 
such approval from the common people of other lands. And 
while the issue in the Philippines is not equally clear, because it 
is possible that statesmanship could have avoided war with the 
Filipinos, yet we have believed and still believe that it was our 
duty to save, by diplomacy if possible, by war if necessary, 
those islands from the anarchy in which the pseudo-government 
of the Aguinaldo oligarchy would inevitably have involved 
them. 

The war with a self-seeking oligarchy in Spain and the war 
with a self-seeking oligarchy in the Philippines is over, and 
now there commences a war with the same spirit of self-seeking 
at home. We are glad that the American flag floats over Puerto 
Rico and over the Philippines ; and we believe that the Amer- 



1900] CRITICAL COMMENT 415 

lean flag will carry to those lands which it covers the same 
blessings which it has carried in successive eras of expansion 
to new American territory on this continent. But it is clear 
that this result and their prosperity and our National honor 
are threatened by short-sighted politicians and greedy traders, 
and that those who are expansionists but not imperialists must 
join hands in a vigorous and determined appeal to the Amer- 
ican people to secure the welfare of our dependencies and pre- 
serve the honor of our Nation. And it seems to us that those 
who have not been expansionists might well join those who are 
expansionists but are not imperialists upon this new issue now 
presented. 

In determining our duty toward our dependencies the Nation 
is bound neither by the specific provisions of its written Consti- 
tution defining the rights of States and Territories, nor by the 
specific counsels and the unwritten traditions of the past. It is 
not bound by the first, because Puerto Rico and the Philippines 
are neither States nor Tei'ritories, and have not the specific 
rights which the written Constitution gives to States and Ter- 
ritories. It is not bound by the second, because counsels given 
and traditions created in one epoch and applicable to one state 
of circumstances are not bonds to bind the Nation in another 
epoch and under different circumstances. . . . 

But we are bound by those general principles of justice and 
humanity which are equally applicable to all epochs and in all 
circumstances, and we must preserve in our new conditions 
that spirit which constitutes what we may call the personality 
of the Nation, the loss of which would involve the real death 
of the Nation. The eternal principle of justice w^hich must 
control us is that governments exist for the benefit of the gov- 
erned ; the American spirit which must control us is that the 
ideal form of government is self-government. . . . The self- 
government of a community rests on the capacity of the indi- 
viduals in the community to govern themselves ; if there is no 
such capacity in the individuals, there will be no such capacity 
in the community. That capacity may be developed by long 
centuries of training, as in the Anglo-Saxon race ; it may be 
developed by contiguity and companionship with meii who 
already possess such capacity, as in the case of our own immi- 



416 COLONIES AND DEPENDENCIES [Ch. XXIV 

grant populations. But to assume that it is possessed by a 
people without training, and to leave them to exercise it with- 
out supervision, counsel, or control, would be a blunder only 
comparable to that of a father who should affirm that all chil- 
dren have a dormant capacity for self-support, and therefore 
the new-born babe may be left to take care of himself. Moses 
required a princess mother, and even Romulus and Remus 
would have starved but for the tender mercies of a she-wolf. 

But, although self-government cannot be assumed as the 
starting-point for Puerto Rico or the Philippines, it must be 
kept constantly in view as the goal. American institutions 
are built on self-government. In this respect America is more 
democratic than England. In England the political powers of 
the county and the town are derived from the central Parlia- 
ment ; in America the powers of Congress are derived from the 
States. The source of authority in the one nation is a central 
fountain, in the other it is many local springs. Our object in 
Puerto Rico and the Philippines must be to develop a local 
self-government in town and county, and from this build up a 
self-government for the entire community, and out of this self- 
government must grow the final relations between that self- 
governing community and the Nation. The ultimate relation 
must be either that of a State to the Nation, or that of an in- 
dependent self-governing colony to a mother-land ; it must not 
be that of a Roman province to a central imperial authority. 
The latter would be imperialism, and it would not be ex- 
pansion. 

Meanwhile, and as a first step in this process, we must gov- 
ern our dependencies with unselfish justice and equit3^ For 
there is only one w'ay of passing from anarchy to self-govern- 
ment — namely, through government from without. 

Lyman Abbott, Expamion, but not Imperialism, in The Outlook, LXIV. 
662-663 (March 24, 1900). 

LODGE (1900) 

The capacity of a people, moreover, for free and representa- 
tive government is not in the least a matter of guesswork. The 
forms of government to which nations or races naturally tend 
may easily be discovered from history. You can follow the 



1900] CRITICAL COMMENT 417 

story of political freedom aud representative government among 
the English-speaking people back across the centuries until you 
reach the Teutonic tribes emerging from the forests of Germany 
and bringing with them forms of local self-government which 
are repeated to-day in the pure democracies of the New Eng- 
land town meeting. The tendencies and instincts of the Teu- 
tonic race which, reaching from the Arctic Circle to the Alps, 
swept down upon the Eoman Empire, were clear at the outset. 
Yet the individual freedom and the highly developed forms of 
free government in which these tendencies and instincts have 
culminated in certain countries and under the most favorable 
conditions have been the slow growth of nearly fifteen hundred 
years. 

There never has been, on the other hand, the slightest indi- 
cation of any desire for what we call freedom or representative 
government east of Constantinople. The battle of Marathon 
was but the struggle between a race which had the instinct and 
desire for freedom and the opposite principle. The form of 
government natural to the Asiatic has always been a despot- 
ism. You may search the history of Asia and of the East for 
the slightest trace, not merely of any understanding, but of any 
desire for political liberty, as we understand the word. In the 
village communities of India, in the Mura of Japan, in the 
towns and villages of China you can find forms of local self- 
government which are as successful as they ai'e ancient. The 
Malays of Java and of the Philippines as well display the same 
capacity, and on this old and deep-rooted practice the self- 
government of provinces and states can, under proper auspices, 
be built up. It is just here that our work ought to begin. But 
this local self-government never went bej^ond the town or the 
village ; it never grew and spread, as was the case with the 
Teutonic tribes and their descendants. The only central, state 
or national governments which the Eastern and Asiatic people 
have formed or set up have been invariably despotisms. . , . 

You cannot change race tendencies in a moment. Habits of 
thought slowly formed through long periods of time and based 
on physical, climatic, and geographical peculiarities are more 
indestructible than the pyramids themselves. Only by very 
slow processes can they be modified or changed. . . . 

27 



418 COLONIES AND DEPENDENCIES [Ch. XXIV 

The problem we have before us is to give to people who 
have no conception of free government, as we understand it 
and carry it on, the opportunity to learn that lesson. What 
better proof could there be of their present unfitness for self- 
government than their senseless attacks upon us before any- 
thing had been done? Could anything demonstrate more fully 
the need of time and opportunity to learn the principles of self- 
government than this assault upon liberators and friends at the 
bidding of a self-seeking, self-appointed, unscrupulous auto- 
crat and dictator? Some of the inhabitants of the Philippines, 
who have had the benefit of Christianity and of a measure of 
education, will, I have no doubt, under our fostering care and 
with peace and order, assume at once a degree of self-govern- 
ment and advance constantly, with our aid, toward a still larger 
exercise of that inestimable privilege, but to abandon those 
islands is to leave them to anarchy, to short-lived military dic- 
tatorships, to the struggle of factions, and, in a very brief time, 
to their seizure by some great Western power who will not be 
at all desirous to train them in the principles of freedom, as we 
are, but who will take them because the world is no longer 
large enough to permit some of its most valuable portions to 
lie barren and ruined, the miserable results of foolish political 
experiments. . . . 

From the dispatch of May 26 onward the attitude of our 
Government was clear and unmistakable. But every real hope, 
every proper promise, was freely offered and never violated. 
There are many duties imposed upon a President in which it is 
easy to imagine a personal or selfish motive, in which such 
motives might exist even if they do not. But here even the 
most malignant must be at a loss to find the existence of a bad 
motive possible. 

Suddenly at the end of the Spanish war we were confronted 
with the question of what should be done with the Philippines. 
Their fate was in our hands. We were all able to discuss them 
and to speculate as to what that fate should be. No responsi- 
bility rested upon us. But one man had to act. While the 
rest of the world was talking he had to be doing. The iron 
hand of necessity was upon his shoulder, and upon his alone. 
Act he must. No man in that hiarh office seeks new burdens 



1900] CRITICAL COMMENT 410 

and fresh responsibilities or longs to enter on new policies with 
the unforeseen dangers which lie thick along untried paths. 
Every selfish motive, every personal interest, cried out against 
it. Every selfish motive, every personal interest, urged the 
President to let the Philippines go, and, like Gallio, to care for 
none of these things. It was so easy to pass by on the other 
side. But he faced the new conditions which surged up around 
him. When others then knew little he knew much. Thus he 
came to see what duty demanded, duty to ourselves and to 
others. Thus he came to see what the interests of the Ameri- 
can people required. Guided by this sense of duty, by the 
spirit of the American people in the past, by a wise statesman- 
ship, which looked deeply into the future, he boldly took the 
islands. Since this great decision his policy has been firm and 
consistent. He has sought only what was best for the people 
of those islands and for his own people. 

The policy we offer, on the other hand, is simple and straight- 
forward. We believe in the frank acceptance of existing facts, 
and in dealing with them as they are and not on a theory of 
what they might or ought to be. We accept the fact that the 
Philippine Islands are ours to-day and that we are responsible 
for them before the world. The next fact is that there is a war 
in those islands, which, with its chief in hiding, and no sem- 
blance of a government, has now degenerated into mere guerilla 
fighting and brigandage, with a precarious existence predicated 
on the November elections. Our immediate duty, therefore, 
is to suppress this disorder, put an end to fighting, and restore 
peace and order. That is what we are doing. That is all 
we are called upon to do in order to meet the demands of the 
living present. Beyond this we ought not to go by a legislative 
act, except to make such provision that there may be no delay 
in re-establishing civil government when the war ends. The 
question of our constitutional right and power to govern those 
islands in any way we please I shall not discuss. Not only is 
it still in the future, but if authority is lacking, the Constitution 
can be amended. Personally, I have no doubt that our Con- 
stitution gives full right and authority to hold and govern the 
Philippines without making them either economically or politi- 
cally part of our system, neither of which they should ever be. 



420 COLONIES AND DEPENDENCIES [Ch. XXIV 

When our great Chief Justice, John Marshall — ' ' clarum et 
venerabile nomen " — declared in the Cherokee case that the 
United States could have under its control, exercised by treaty 
or the laws of Congress, a "domestic and dependent nation," I 
think he solved the question of our constitutional relations to the 
Philippines. Further than the acts and the policy which I have 
just stated, I can only give my own opinion and belief as to the 
future, and as to the course to be pursued in the Philippines. 
I hope and believe that we shall retain the islands, and tliat, 
peace and order once restored, we shall and should re-establish 
civil government, beginning with the towns and villages, where 
the inhabitants are able to manage their own affairs. We 
should give them honest administration, and prompt and 
efficient courts. We should see to it that there is entire 
protection to persons and property, in order to encourage 
the development of the islands by the assurance of safety to 
investors of capital. All men should be protected in the free 
exercise of their religion, and the doors thrown open to mission- 
aries of all Christian sects. The land, which belongs to the 
people, and of which they have been robbed in the past, should 
be returned to them and their titles made secure. We should 
inaugurate and carry forward, in the most earnest and liberal 
way, a comprehensive system of popular education. Finallv, 
while we bring prosperity to the islands by developing their 
resources, we should, as rapidly as conditions will permit, be- 
stow upon them self-government and home rule. Such, in out- 
line, is the policy which I believe can be and will be pursued 
towards the Philippines. It will require time, patience, honesty, 
and ability for its completion, but it is thoroughly practicable 
and reasonable. . . . 

I do not think the Filipinos are fit for self-government as we 
understand it, and I am certain that if we left them alone the 
result would be disastrous to them and discreditable to us. Left 
to themselves the islands, if history, facts, and experience teach 
anything, would sink into a great group of Haitis and St. Do- 
mingos, with this important difference, that there would be no 
Monroe doctrine to prevent other nations from interfering to 
put an end to the ruin of the people and the conversion of a fair 
land into a useless and unproductive waste. The nations of 



189S-1900] CRITICAL COMMENT 421 

Europe are not going to stand idly by and see the islands of the 
Philippines given over to anarchy and dictatorships of the Hai- 
tian type, while their waters swarm again with pirates whom 
Spain suppressed, and whom we have now the responsibility of 
keeping down and extinguishing. We have no right to give 
those islands over to anarchy, tyrannies, and piracy, and I hope 
we have too much self-respect to hand them over to European 
powers with the confession that they can restore peace and 
order more kindly and justly than we, and lead the inhabitants 
onward to a larger liberty and a more complete self-government 
than we can bestow upon them. Therefoi*e, Mr. President, I 
desire to show why I feel so confident that the Filipinos are not 
now fit for self-government, and that their only hope of reach- 
ing the freedom, self-government, and civilization which we 
desire them to have lies in our now holding, governing, and 
controlling the islands. 

Henry Cabot Lodge, The Retention of the Philippine Islands. (Speech in 
the Senate, March 7, 1900.) 14-35 passim. 

GIDDINGS (1900) 

Never since the Constitution was ratified by the thirteen 
original commonwealths have the American people, as a whole, 
felt so confident of their place among the nations, or so sure of 
the excellence of their polity, and of the vitality of their laws 
and immunities. Never have they been so profoundly con- 
vinced that their greatest work for civilization lies not in the 
past, but in the future. They stand at the beginning of the 
twentieth century, in their own minds fully assured that the re- 
sponsibilities which they are about to face, and that the achieve- 
ments which they expect to complete, are immeasurably greater 
than are those which have crowned the century of their experi- 
ment and discipline. 

From the Louisiana purchase to the annexation of Hawaii 
we have seized, with unhesitating promptness, every opportunity 
to broaden our national domain, and to extend our institutions 
to annexed populations. Even more convincingly has our vig- 
our been shown in the fearlessness with which the cost of every 
new responsibility has been met. Whether this cost has been. 



422 COLONIES AND DEPENDENCIES [Ch. XXIV 

paid in treasure or in blood, the American people lias met it 
without one moment's hesitation. . . . 

. . Next to vitality, and supplementing it, the basis of faith 
in the future is a sound, full knowledge of the present and the 
past. The American people know facts about their own num- 
bers, resources, and activities, which fully justify their belief 
that they are at the beginning, not approaching the end, of 
their evolution as a civilized nation. Only in a few spots within 
our national domain does the density of population yet approach 
the average density of the older European countries. . . . 

Into this domain the population of Europe continues to dis- 
charge its overflow ; and the stream of immigration shows no 
marked decrease save in the exceptional years of industrial 
depression. Of chief significance, however, is the fact that the 
greater part of all the immigration that we have thus far re- 
ceived has consisted of the same nationalities from whose 
amalgamation the original American stock was produced. . . . 

When we remember that it was the crossing of the Germanic 
and the Celtic stocks that produced the English race itself, we 
are obliged to assume that the future American people will be 
substantially the same human stuff that created the English 
common law, founded the Parliamentary institutions, estab- 
lished American self-government, and framed the Constitution 
of the United States. 

Fhanklin H. Giddings, Democracy and Empire. 295-297. 



APPENDIX A 

ESSENTIALS IN ENGLISH CONSTITUTIONAL 
HISTORY 



This analysis of English historj' has been tested by actual class use, and is 
adapted for the documents which form the body of the work. The titles of the 
documents are distinguished in the Essentials by appearing in italics. 



§ 1. Essentials in Early Teu- 
tonic Life. — 2000 B. C.-449 

A. D. 

1. Geographical environment. 

Eifect : Eacial characteristics. 

2. Nomadic tribes of Aryan 

family. 
Effect : Tribal settlements 
formed gradually. 

3. Leadership of divisions. 

Effect : Beginning of local 
government. 

4. Spirit engendered by " tun- 

mote." 
Effect : Germ of free citizen- 
ship. 

5. Development of the Witanage- 

mot. 
Effect : Government by the 
" freemen." 

6. Migration into Britain. 

Effect : Subjection of the 
Celts. 

§ 2. Essentials in the Anglo- 
Saxon Period. — 449-1066. 

I. Conditions of Making a King- 
dom. 

1. To gain territory. 

Effect : The Heptarchy. 

2. To establish over-lordship. 

Effect : Egbert, " King of the 
English." 



3. To keep out the Danes. 

Effect : Peace of Wedmore 
(9th c). 
II. Keeping a Kingdom. 

1. To hold territory against Danes. 

Effect : Government under 
Dunstan's influence. 

2. "Weakness of Ethelred II.'s 

policy. 
Effect : Danish invasion. 

3. Edmund Ironsides versus Ca- 

nute. 
Effect : Canute's reign of 
power. 

4. Anarchy in Danish govern- 

ment. 
Effect : Restoration of Saxon 
line. 

5. Foreign influence versus God- 

win's party. 
Effect : Exile of the latter. 

6. Saxons versus Normans. 

Effect : Norman Conquest. 
§ 3. Essentials in the Norman- 
Angevin Period. — 1066- 
1400. 
I. The Development of a Sys- 
tem of Government. 
1. Struggle for territory and pos- 
session. 
Effect : Complete conquest of 
England by William I. 



424 



ENGLISH ESSENTIALS 



[App. a 



2. Establishment of the feudal 

system. 
Effect : Supremacy of the 
King of England. 

3. Census and oath of allegiance. 

Effect: Suppression of bar- 
ons. 
II. Extension of Government to 
THE People. 

1. Henry I.'s Charter of Liberties. 

1101. 
Effect : Privileges to the 
people. (Curia Regis.) 

2. Henry II.'s Laws. 

Effect : Purer courts. 

3. Magna Charta. 1215. 

Effect : " Liberty of the sub- 
ject." 

4. Summons of Representatives to 

Parliament. 1295. 
Effect : Broadening govern- 
ment. 

5. Edward I.'s Confirmation of 

Magna Charta. 1297. 
Effect : " No taxation without 
representation." 

6. Overthrow of system of land- 

tenure. 
Effect : Peasant revolt. 

7. Deposition of king. 

Effect : Parliamentary rights. 

§ 4. Essentials in the Lancas- 
trian- Yorkish Period. — 
1400-1485. 

I. Asskrtion of Constitutional 
Pow^ER. 

1. Usurpation of Henry IV. upheld 

by Parliament. 
Effect : Power of Parliament. 

2. Henry V.'s policy. 

Effect : Conciliation at home ; 
war abroad. 

3. Parliamentary demands during 

reigns of Henry Y. and 
Henry VI. 
Effect: Power in House of 
Commons. 

4. Trial by Jury strengthened. 1429. 



Effect : Beginning of modern 
system. 
II. Decadence of Constitutional 
Power. 

1. King's minority demands pro- 

tectorate. 
Effect : Political factions. 

2. Yorkish influence. 

Effect : Compromise and 
treaty. 

3. Civil war. 

Effect : Constitutional power 
broken. 

4. Edward IV. usurps throne. 

Effect : Margaret's claim. 

5. Edward's restoration. 

Effect : Pressure of kingly 
power in taxation. 

6. Richard III. usurps throne. 

Effect : Overthrow of York 
party. 
§ 5. Essentials in the Tudor Pe- 
riod. — 1485-1603. 

I. The New Spirit in Investi- 

gation, Exploration, and 
Thought. 

1. England's geographical inter- 

ests. 
Effect : Claims in America. 

2. Henry VII. 's policy. 

Effect : Continental alliances. 

3. Progress of the " new learning." 

Effect : Protestantism gets a 
foothold. 

4. Henry VIII.'s "balance of 

power." 
Effect : Peace permits de- 
velopment. 

5. Wolsey's policy. 

Effect : King's supremacy. 

6. Cranmer's and Cromwell's 

policy. 
Effect: Establishment of the 
Anglican Church. 

II. Party Factions develop in 

THE Government. 
1. Policy of Somerset and North- 
umberland. 



1100-1660] 



NORMANS TO STUARTS 



426 



Effect: Overthrow of Eoman 
Catholic power. 

2. Policy of Mary Tudor. 

Effect ; Overthrow of Pro- 
testantism. 

3. Eeaction by Lords of the 

Council. 
Effect : Elizabeth crowned. 
III. Growth of National Pkide 
AND Power. 

1. Elizabeth's policy with factious. 

Effect : Unity in State. 

2. Encouragement of art and 

literature. 
Effect : " Elizabethan Age." 

3. Colonization in Ireland and 

America. 
Effect : English Protestant 
settlements. 

4. Spain's policy and Spanish Ar- 

mada. 
Effect : England's defiance. 
§ 6. Essentials in the Stuart 
Period. — 1603-1714. 
Constitutional struggle between 
King and Commons. 
I. Divine Right of Kings ver- 
sus Parliament. 

1. Attempt to establish control of 

religion. 
Effect : Failure to unite sects. 

2. Demands of Parliament for re- 

dress of grievances before 
taxation. 
Effect : Arbitrary rule of king. 

3. Enthusiasm for colonization. 

Effect : Early emigration into 
Virginia. 

4. Charles I.'s establishment of 

" Divine Right of Kings." 
Effect: Petition of Bight, 
1628. 

5. Establishment of " System 

Thorough." 
Effect: Grand Remonstrance. 

6. Attempted suppression of free 

speech in Parliament. 
Effect : Civil war. 



7. Military sway. 

Effect : Execution of king. 

II. Establishment of the Com- 

monwealth. 

1. Cromwell versus Charles II. 

Effect : Subjection of Scotland 
and Ireland. 

2. Expulsion of Long Parliament. 

Effect : Protectorate. 

3. Influence of attempted frames 

of government. 

The Agreement of the People. 
1648-49. 

Instrument of Government. 16.53. 

Effect : Temporarily inade- 
quate ; later, types of con- 
stitutions. 

4. Cromwell's policy. 

Effect : Rule of strength and 
toleration. 

5. Inadequacy of Protectorate un- 

der Richard Cromwell. 
Effect : Overthrow of Com- 
monwealth. 

III. Restoration of Stuart 

House. — 1660. 

1 . Re-establishment of ancient civil 

polity. 
Effect : Temporary union of 
English people. 

2. Foreign policy. 

Effect : Triple Alliance versus 
French subsidy. 

3. Declaration of Indulgence. 

Effect : Oath of Supremacy ; 
Test Act. 

4. Legislation for the " subject." 

Effect ; Habeas Corpus Act, 
1679. 

5. Agitation of Exclusion Bill. 

Effect : Monmouth party. 

6. James II. 's policy. 

Effect : Monmouth rebellion. 

7. " Dispensing power." 

Effect : Growing tyranny. 

8. Importance of " Succession " 

Effect: William of Orange 
invited to England. 



426 



ENGLISH ESSENTIALS 



[App. a 



9. Abdication of James IT. 

Effect : Interregnum ; " Decla- 
ration of Eights." 
IV. The Revolution of 1688. 

1. Policy of William and Mary. 

Effect: Bill of Rights, 1689. 

2. Insurrections. 

Effect : Scotland and Ireland 
subdued. 

3. Alliance with Holland against 

Louis XIV. 
Effect: William of Orange 
recognized by Peace of 
Ryswick. 

4. The cause of the Pretender in- 

fluences England to join 
the Grand Alliance. 
Effect : England's share in the 
War of the Spanish Suc- 
cession. 

5. Act of Settlement. 1701. 

Effect: Protestant line se- 
cured. 

6. Anne's ministry. 

Effect : Power of Whig nobles. 

7. Dissolution of the Grand Alli- 

ance. 
Effect: Treaty of Utrecht 
affects England in the Old 
World and the New World. 

8. Fall of Marlborough. 

Effect : Tory power arises for 
time being. 

§ 7. Essentials in the Hanove- 
rian Period. — 1714-1815. 

I. Whig Supremacy. 

1. Influence of Act of Settlement. 

Effect : George I. crowned king. 

2. Policy of the Walpole ministry. 

Effect : Reign of peace. 

3. Development of economics. 

Effect : Difficulties arising in 
the legislation of reforms. 

4. Foreign policy. 

Effect : England's share in 
the War of the Austrian 
Succession. 



5. Claims of the Jacobites. 

Effect : The CuUoden field. 

6. Broadening of colonial system. 

Effect : Expansion of England. 

7. Pitt's early policy. 

Effect : Foreign relations. 

8. England's share in Seven Years' 

War. 
Effect : French- American pos- 
sessions become English. 

9. Eastern administration. 

Effect : England's eastern em- 
pire. 

II. Development of Colonial 

Government. 

1. English control. 

Effect : Neglect gives the col- 
onies confidence. 

2. Colonial charters. 

Effect: Conception of rights 
of Englishmen ; Dummer's 
Defence of the Charters. 

III. English Side of the American 

Revolution. 

1. Colonial regulations. 

Efl'ect : Principles of the 
House of Commons versus 
royal power. 

2. Policy of Lord North. 

Effect : Colonial defiance. 

3. Struggle for independence by 

American colonies. 
Effect : Treaty of Paris, 1783. 

IV. Napoleonic Wars. 

1. Continental relations. 

Effect : Alliance against Na- 
poleon. 

2. Continental system versus Or- 

ders in Council. 
Effect : Commercial life crip- 
pled. 

3. War of 1812. 

Effect : United States recog- 
nized as a " world-power." 

4. Wellington versus Napoleon. 

Effect : Fall of Napoleon. 



APPENDIX B 

ESSENTIALS IN AMERICAN CONSTITUTIONAL 
HISTORY 



This analysis of American history is especially desij^ned to be a background for 
the study of the documents printed above. The titles appear in italics. 



§ 1. Essentials in the Rivalry for 
Possession of the Nevr 

"World.— 1492-1689. 

1. Search for a western passage 

to Asia. 
Effect : Discovery of America. 

2. Claims of Spain. 

Effect : Spanish settlements in 
the South. 

3. Claims of England. 

Effect : Virginia and the At- 
lantic seacoast. 

4. Claims of France. 

Effect : Settlements in the 
North ; Louisiana. 

5. Minor claims. 

Effect: Dutch and Swedish 
settlements. 

6. Growing power in New France 

and New England. 
Effect: French and Indian 

Wars. 
§ 2. Essentials in the Gro-wth of 
Government in English 
Colonies. — 1607-1643. 

1. James I.'s policy in granting 

royal charters. 
Effect : London and Plymouth 
companies. 

2. Influence of the principle of 

local self-government. 
Effect : House of Burgesses, 
1619, under Virginia char- 
ter; independence of gov- 



ernment in Massachusetts 
Bay Company. 

3. Influence of the spirit of organ- 

ization. 
Effect : " Freemen," towns, 
counties, assemblies. 

4. Influence of the doctrine of 

vested rights protected by 
charters. 
Effect : Renewal of char- 
ters. 

5. Massachusetts's special prosper- 

ity. 
Effect : Colonial jealousies. 

6. Disorder in the government in 

England. 
Effect : No interference in the 
colonies, hence rapid de- 
velopment. 

7. Search for freedom from col- 

onial control by Massachu- 
setts. 
Effect : Fresh settlements in 
Connecticut, Rhode Island, 
and New Haven. 

8. Indian and Dutch encroach- 

ments. 
Effect : Pequod War ; New 
England Confederacy. 
3. Essentials in International 
Relations at Home and 
Abroad. — 1620-1763. 
L Colonies versus Indians. 

Effect : Civilization by Eng- 



428 



AMERICAN ESSENTIALS 



[App. B 



lish; King Philip's "War, 
1675. 

2. Continental wars extend to New 

France and New England. 
Effect : King William's War ; 
Queen Anne's War ; King 
George's War. 

3. Aggressive action towards colo- 

nial charters. 
Effect : " Defence of the New 
England Charters," 1721. 

4. Growing rivalry between Eng- 

lish and French over the 
" gateway of the West." 
Effect : Colonies share in the 
Seven Years' War. 

5. Fall of Quebec. 

Effect : French excluded from 
the Continent by Peace of 
Paris, 1763. 
4. Essentials in the Revolu- 
tion.— 1763-1783. 

I. DiSCONTKNT WITH RoYAL GOV- 
ERNMENT. — 1763-1775. 

1. Restrictions on commerce and 

manufactures. 
Effect : Revolt against Navi- 
gation Acts by smuggling. 

2. Writs of assistance and Stamp 

Act. 
Effect : Stamp Act ; Congress 
demands redress, 1765. 

3. Repeal of Stamp Act ; Declara- 

tory Act ; Townshend Act ; 
Tea Tax. 
Effect: Principles of "taxa- 
tion without representa- 
tion " invoked ; Boston Tea- 
Party. 

4. Aggressive acts of standing 

army. 
Effect : Boston Massacre. 

5. Preliminaries of the Revolution. 

Effres : Committees of Cor- 
respondence; Committees 
of Safety. 

6. The four intolerable acts. 

Effect: (1) First Continental 



Congress; (2) Provincial 
Congresses; (3) Massachu- 
setts boycotted. 

7. British regulars attempt to 

break colonial military 
preparations. 
Effect : Revolutionary War 
breaks out. 

8. Investment of Boston. 

Effect : Battle of Bunker Hill. 

9. Second Continental Congress. 

Effect : Assumption of national 
powers for common defence. 
II. Struggle to gain Independ- 
ence. — 1776-1783. 

1. Spirit of separation (Virginia 

Bill ofRighla). 1776. 
Effect : Declaration of Inde- 
pendence, July 4, 1776. 

2. Hopelessness of reconciliation. 

Effect : Continuance of the 
war. 

3. Campaign at Saratoga a turning- 

point. 
Effect : The French alliance. 

4. Southern campaigns. 

Effect : Defeat of Cornwallis. 

5. American commissioners ar- 

range treaties : Provisional 
Treaty, 1782; Treaty of Pa- 
ris, 1783. 
Effect : Final independence of 
United States of America. 
§ 5. Essentials in Constitution 

Building. — 1783-1790. 
I. Struggle for Union in a 
National Government. — 
1783-1787. 

1. Necessity for frame of govern- 

ment. 
Effect : Plans for Confedera- 
tion, 1776-1781 ; Operation 
of Articles of Confederation, 
1781-1787. 

2. Problem of governing territory. 

Effect : Northivest Ordinance 
of 1787. 

3. Financial weakness. 



1675-1861] 



COLONIES TO REBELLION 



429 



Effect : Constitutional Con- 
vention, 1787. 
II. Development of a Consti- 
tutional Government. — 
1787-1790. 

1. State sovereignty develops con- 

flicting interests and opinions. 
Effect : Three great compro- 
mises of the Constitutional 
Convention. 

2. Final struggle between Articles 

of Confederation and Con- 
stitution of United States, 
1787-1790. 
Effect : Ratification. 
§ 6, Essentials in the Develop- 
ment of National Feel- 
ing.— 1790-1825. 

1. Hamilton's financial policy ver- 

sus Jefferson's opposition. 
Effect : Federalism ; Repub- 
licanism. 

2. Maintenance of domestic order. 

Effect : Suppression of Whis- 
key Rebellion. 

3. Jay's Treaty and its effect upon 

France. 
Effect : American policy to- 
wards foreign nations influ- 
enced by Washington's 
Farewell Address, 1797. 

4. Alien and Sedition Acts. 

Effect : Fall of Federal Party. 

5. Power of Democratic-Republi- 

canism. 
Effect : International relations 
(Louisiana, Tripoli, " Chesa- 
peake "). 

6. Question of neutral rights with 

France and England. 
Effect: War of 1812. 

7. Rapid settlement of the West. 

Effect : New States. 
8 Growing demand for national- 
ization. 

Effect : Supreme Court deci- 
sions upon bank (McCulloch 
V. Maryland), States, etc. 



9. Our policy towards the Amer- 
icas. 
Effect : Independence of Span- 
ish colonies ; Florida treaty. 
10. Resistance to European inter- 
vention ; Holy Alliance. 
Effect : Russian treaty ; Mon- 
roe Doctrine, 1823. 
§ 7. Essentials in the Growth 
of Sectional Feeling. 

1. Slavery. 

Effect : Development of doc- 
trine of State rights ; Mis- 
souri Compromise. 

2. Divergence of interests in the 

sections. 
Effect : Rapid growth of North 
and South. 

3. Tariff question. 

Effect : Yielding of the prin- 
ciple of protection. 

4. Question of nullification. 

Effect : Jackson's attitude. 

5. Mexican War. 

Effect : Acquisition of Texas 
and California. 

6. Repeal of Missouri Compromise. 

Effect : Growth of antislavery 
sentiment. 

7. Efforts of South for more slave 

territory. 
Effect : Compromises of 1 850 ; 
Cuban question. 

8. The Bred Scott Case. 1857. 

Effect : Party feeling. 

9. Campaign of 1860. 

Effect : Secession and forma- 
tion of the Confederate 
States of America. 
§ 8. Essentials in the War of the 
Rebellion. — 1861-1865. 

1. Firing on Fort Sumter. 

Effect : Arousal of North to 
the defence of the Union. 

2. Fears of foreign intervention. 

Effect: The Trent affair; Sew- 
ard's diplomacy ; invasion 
of Mexico by Napoleon III. 



430 



AMERICAN ESSENTIALS 



[App. B 



3. Importance of salvation of 

border States. 
Effect : Campaigns of 1862. 

4. What to do with slavery. 

Effect : " Contraband of war ; " 
Emancipation Proclamation, 
1862, 1863. 

5. Attempted invasion of the 

North. 
Effect : Gettysburg. 

6. The " Hammering Campaign." 

Effect : Appomattox ; peace 
and amnesty, April 9, 1865. 
§ 9. Essentials in Reconstruc- 
tion. 1864-1877. 

1. Military government. 

Issue : Carpet-bag government 
and plundering of exhausted 
South. 

2. Thirteenth Amendment. 1865. 

Issue : Abolition of slavery. 
Fourteenth Amendment. 1866. 

Effect : The negro made a citi- 
zen; validity of war debt 
established ; Confederate 
debt repudiated ; disfran- 
chisement of whites of South 
followed by final removal of 
political disabilities. 
Fifteenth Amendment. 1870. 

Effect : Negro suffrage ; tissue 
ballot ; registration laws 
depriving negro suffrage ; 
Ku-Klux Klan. 



3. Quarrel between executive and 

Congress. 
Effect: Civil Rights Bill; 
Tenure of Office Act ; im- 
peachment of President. 

4. Election of Hayes. 

Effect : Electoral Commission ; 
withdrawal of military from 
the South and final restora- 
tion of local self-govern- 
ment. 
§ 10. Essentials in Social and 
Economic Discussions 
since the Civil War. 

1. Payment of war debt. 

Issue : Public credit strength- 
ened ; bonds appreciated ; 
specie payments resumed. 

2. Building of Pacific railroads. 

Issue : New States ; rapid de- 
velopment of the West ; 
land speculations. 

3. Panic of 1873. 

Issue : Attempted inflation. 

4. Immigration. 

Issue : Restriction of Chinese. 

5. Free trade revived. 

Issue: Morrison Bill; Mills 
Bill; Wilson Bill. 

6. Money questions. 

Issue : Labor agitation, cul- 
mination in campaign of 
1896. 



APPENDIX C 

TEXT OF THE HABEAS CORPUS ACT, 1679 

An Act for the better secureing the Liberty of the Subject and for 
Prevention of Imprisonments beyond the Seas, 

I. Whereas great Delayes have beene used by Sheriffes Goalers 
and other Ofl&cers to whose Custody any of the Kings Subjects have 
beene committed for criminall or supposed criminall Matters in 
makeing Returnes of Writts of Habeas Curpus to them directed by 
standing out an Alias and Pluries Habeas Corpus and sometimes 
more and by other shifts to avoid their yeilding Obedience to such 
Writts contrary to their Duty and the knowne Lawes of the Land 
whereby many of the Kings Subjects have beene and hereafter may be 
long detained in Prison in such Cases whei'e by Law they are baylable 
to their great charge and vexation. For the prevention whereof and 
the more speedy Releife of all persons imprisoned for any such crim- 
inall or supposed criminall Matters Bee it enacted by the Kings most 
Excellent Majestic by and with the Advise and Consent of the Lords 
Spirituall and Temporall and Commons in this present Parlyament 
assembled and by the autboritie thereof That whensoever any person 
or persons shall bring any Habeas Corpus directed unto any Sheriffe 
or Sheriffes Gaoler Minister or other Person whatsoever for any per- 
son in his or their Custody and the said Writt shall be served upon 
the said Officer or left at the Goale or Prison with any of the Under 
Officers Underkeepers or Deputy of the said Officers or Keepers that 
the said Officer or Officers his or their Under Officers Under-Keepers 
or Deputyes shall within Thi-ee dayes after the Service thereof as 
aforesaid (unlesse the Committment aforesaid were for Treason or 
Fellony plainely and specially expressed in the Warrant of Committ- 
ment) [upon Payment or Tender of the Charges of bringing the said 
Prissoner to be ascertained by the Judge or Court that awarded the 
same and endorsed upon the said Writt not exceeding Twelve pence 
per Mile] and upon Security given by his owne Bond to pay the 
Charges of carrying backe the Prisoner if he shall bee remanded by 
the Court or Judge to which he shall be brought according to the true 
intent of this present Act and that he will not make any escape by 



432 - HABEAS CORPUS ACT [App. C 

the way make Returns of such Writt [or] bring or cause to be brought 
the Body of the Partie soe committed or restrained unto or before the 
Lord Chauncellor or Lord Keeper of the Great Seale of England for 
the time being or the Judges or Barons of the said Court from whence 
the said Writt shall issue or unto and before such other person [and] 
persons before whome the said Writt is made returnable according 
to the Command thereof, and shall [likewise then] certifie the true 
causes of his Detainer or Imprisonment unlesse the Committment of 
the said Partie be in any place beyond the distance of Twenty miles 
from the place or places where such Court or Person is or shall be 
resideing and if beyond the distance of Twenty miles and not above 
One hundred miles then within the space of Ten dayes and if beyond 
the distance of One hundred miles then within the space of Twenty 
dayes after such delivery aforesaid and not longer. 

II. [And to the intent that noe Sheriffe Goaler or other Officer 
may pretend ignorance of the import of any such Writt Bee it en- 
acted by the Authoritie aforesaid That all such Writts shall be 
marked in this manner Per Statutum Tricesimo primo Caroli Secundi 
Regis and shall be signed by the person that awards the same] And 
if any person or persons shall be or stand committed or detained as 
aforesaid for any Crime unlesse for Treason or Fellony plainely ex- 
pressed in the Warrant of Committment in the Vacation time and 
out of Terme it shall and may be lawfull to and for the person or 
persons soe committed or detained (other than persons Convict or in 
Execution) by legall Processe or any one [in] his or their behalfe to 
appeale or complaine to the Lord Chauncellour or Lord Keeper or 
any one of His Majestyes Justices [either] of the one Bench or of 
the other or the Barons of the Exchequer of the Degree of the Coife 
and the said Lord Chauncellor Lord Keeper Justices or Barons or 
any of them upon view of the Copy or Copies of the Warrant or 
Warrants of Committment and Detainer or otherwise upon Oath 
made that such Copy or Copyes were denyed to be given by such 
person or persons in whose Custody the Prisoner or Prisoners is or 
are detained are hereby authorized and required [upon Request made 
in Writeing by such person or persons or any on his her or their 
behalfe attested and subscribed by two Witnesses [that] were present 
at the delivery of the same] to award and grant an Habeas Corpus 
under the Seale of such Court whereof he shall then be one of the 
Judges to be directed to the Officer or Officers in whose Custodie the 
Party soe committed or detained shall be returnable immediate be- 
fore the said [Lord Chauncellor or] Lord Keeper or such Justice 
Baron or any other Justice or Baron of the Degree of the Coife of 
any of the said Courts and upon Service thereof as aforesaid the 
Officer or Officers his or their Under-Officer or Under Officers Under 



1679] TEXT 433 

Keeper or Under Keepers or [their] Deputy in whose custodie the 
Partie is soe committed or detained shall within the times respectively 
before liraitted [bring such Prisoner or Prisoners] before the sd Lord 
Chauncellor or Lord Keeper or such Justices Barons or one of thera 
[before whome the said Writt is made returnable and in case of his 
absence before any other of them] with the Returne of such Writt 
and the true Causes of the Committment and Detainer and there- 
upon within two dayes after the Partie shall be brought before 
them the said Lord Chauncellor or Lord Keeper or such Justice or 
Baron before whome the Prisoner shall be brought as aforesaid shall 
discharge the said Prisoner from his Imprisonment takeing his or 
their Recognizance with one or more Suretie or Sureties in any 
summe according to their discretions haveing reguard to the quality of 
the Prisoner and nature of the Offence for his or their appearance in 
the Court of Kings Bench the Terme following or at the next Assizes 
Sessions or Generall Goale-Delivery of and for such County City or 
Place where the Committment was or where the Offence was com- 
mitted or in such other Court where the said Offence is properly 
cognizable as the Case shall require and then shall certifie the said 
Writt with the Returne thereof and the said Recognizance or Recog- 
nizances into the said Court where such Appearance is to be made 
unlesse it shall appeare unto the said Lord Chauncellor or Lord 
Keeper or Justice or Justices [or] Baron or Barons that the Party soe 
committed is detained upon a legall Processe Order or Warrant out 
of some Court that hath Jurisdiction of Criminall Matters or by 
some Warrant signed and sealed with the Hand and Seale of any of 
the said Justices or Barons or some Justice or Justices of the Peace 
for such Matters or Offences for the which by the Law the Prisoner 
is not Baileable. 

III. [Provided alwayes and bee it enacted That if any person shall 
have wilfully neglected by the space of t"wo whole Termes after his 
Imprisonment to pray a Habeas Corpus for his Enlargement such per- 
son soe wilfully neglecting shall not have any Habeas Corpus to be 
granted in Vacation time in pursuance of this Act.] 

IV. And bee it further enacted by the Authoritie aforesaid That if 
any Officer or Officers his or their Under-Officer or Under-Officers 
Under-Keeper or Under-Keepers or Deputy shall neglect or refuse to 
make the Retm-nes aforesaid or to bring the Body or Bodies of the 
Prisoner or Prisoners according to the Command of the said Writt 
within the respective times aforesaid or upon Demand made by the 
Prisoner or Person in his behalfe shall refuse to deliver or within the 
space of Six houres after demand shall not deliver to the person soe 
demanding a true Copy of the Warrant or Warrants of Committment 
and Detayner of such Prisoner, which he and they are hereby required to 

28 



434 HABEAS CORPUS ACT [App. C 

deliver accordingly all and every the Head Goalers and Keepers of such 
Prisons and such other person in whose Custodie the Prisoner shall 
be detained shall for the first Offence forfeite to the Prisoner or Partie 
grieved the summe of One hundred pounds and for the second Offence 
the summe of Two hundred pounds and shall and is hereby made in- 
capeable to hold or execute his said Office, the said Penalties to be 
recovered by the Prisoner or Partie grieved his Executors or Admin- 
istrators against such Offender his Executors or Administrators by 
any Action of Debt Suite Bill Plaint or Information in any of the 
Kings Courts at Westminster wherein noe Essoigne Protection Privi- 
ledge Injunction Wager of Law or stay of Prosecution by Non vult 
ulterius prosequi or otherwise shall bee admitted or allowed or any 
more then one Imparlance, and any Recovery or Judgement at the 
Suite of any Partie grieved shall be a sufficient Conviction for the 
first Offence and any after Recovery or Judgement at the Suite of a 
Partie grieved for any Offence after the first Judgement shall bee a 
sufficient Conviction to bring the Officers or Person within the said 
Penaltie for the second Offence. 

V. And for the prevention of unjust vexation by reiterated Com- 
mittments for the same Offence Bee it enacted by the Authoritie afore- 
said That noe person or persons which shall be delivered or sett at 
large upon any Habeas Corpus shall at any time here after bee againe 
imprisoned or committed for the same Offence by any person or per- 
sons whatsoever other then by the legall Order and Processe of such 
Court wherein he or they shall be bound by Recognizance to appears 
or other Court haveing Jurisdiction of the Cause and if any other 
person or persons shall knowingly contrary to this Act recommitt or 
imprison or knowingly procure or cause to be recommitted or impris- 
oned for the same Offence or pretended Offence any person or persons 
delivered or sett at large as aforesaid or be knowingly aiding or as- 
sisting therein then he or they shall forfeite to the Prisoner or Partie 
grieved the summe of Five hundred pounds Any colourable pretence 
or variation in the Warrant or Warrants of Committment notwith- 
standing to be recovered as aforesaid. 

VI. Provided alwayes and bee it further enacted That if any 
person or persons shall be committed for High Treason or Fellony 
plainely and specially expressed in the Warrant of Committment upon 
his Prayer or Petition in open Court the first Weeke of the Terme or 
first day of the Sessions of Oyer and Terminer or Generall Goale 
Delivery to be brought to his Tryall shall not be indicted sometime 
in the next Terme Sessions of Oyer and Terminer or Generall Goale 
Delivery after such Committment it shall and may be lawfull to and 
for the Judges of the Court of Kings Bench and Justices of Oyer and 
Terminer or Generall Goale Delivery and they are hereby required 



1679] TEXT 435 

upon motion made to them in open Court the last day of the Terme 
Sessions or Goale-Delivery either by the Prisoner or any one in his 
behalf 8 to sett at Liberty the Prisoner upon Baile unlesse it appeare 
to the Judges and Justices upon Oath made that the Witnesses for 
the King could not be produced the same Terme Sessions or Generall 
Goale-Delivery. And if any person or persons committed as aforesaid 
upon his Prayer or Petition in open Court the first weeke of the Terme 
or first day of the Sessions of Oyer and Terminer or Generall Goale 
Delivery to be brought to his Tryall shall not be indicted and tryed 
the second Terme Sessions of Oyer and Terminer or Generall Goale 
Delivery after his Committment or upon his Tryall shall be acquitted 
he shall be discharged from his Imprisonment. 

VII. [Provided alwayes That nothing in this Act shall extend to 
discharge out of Prison any person charged in Debt or other Action 
or with Processe in any Civill Cause but that after he shall be dis- 
charged of his Imprisonment for such his Criminall Offence he shall 
be kept in Custodie according to Law for such other Suite.] 

VIII. Provided alwaies and bee it enacted by the Persons com- 
Authoritie aforesaid That if any person or persons Sub- pittedforcrim- 
ject of this Realms shall be committed to [any] Prison ^^ ^g removed 
or in Custodie of any Officer or Officers whatsoever for but by Habeas 
any Criminall or supposed Criminall matter That the i^° ^^'^writ °*^^^'" 
said pex'son shall not be removed from the said Prison 

and Custody into the Custody of any other Officer or 
Officers unlesse it be by Habeas Corpus or some other 
Legall Writt or where the Prisoner is delivered to the 
Constable or other inferiour Officer to carry such Pris- 
oner to some Common Goale or where any person is sent 
by Order of any Judge of Assize or Justice of the Peace 
to any common Worke-house or House of Correction or 
where the Prisoner is removed from one Prison or place 
to another within the same County in order to his or her 
Tryall or Discharge in due course of Law or in case of 
suddaine Fire or Infection or other necessity] and if any 
person or persons shall after such Committment afore- . 
said make out and signe or countersigne any Warrant or 
Warrants for such removeaU aforesaid contrary to this 
Act as well he that makes or signes or countersignes such 
Warrant or Warrants as the Officer or Officers that obey 
or execute the same shall suffer and incurr the Paines 
and Forfeitures in this Act before-mentioned both for the 
first and second Offence respectively to be recovered in 
manner aforesaid by the Partie grieved. Penalty. 



436 



HABEAS CORPUS ACT 



[App. C 



Proviso for 
application for 
and granting 
Habeas Corpus 
in vacation- 
time. 

Lord Chan- 
cellor, &c., un- 
dulv denying 
Writ; 



Penaltv to 
Party ^500. 

Undue denial 
of Writ. 



Habeas Corpus 
available 
throughout the 
Dominion. 



No Subject to 
be sent Pris- 
oner into Scot- 
land, &c., or 
any Parts be- 
yond the Seas. 



Persons so im- 
prisoned may 
maintain Ac- 
tion against 
the Person 
committing or 
otherwise act- 
ing in respect 
thereof, as 
herein men- 
tioned. 



IX. Provided alsoe and bee it further enacted by the 
Authoritie aforesaid That it shall and may be lawfull 
to and for any Prisoner and Prisoners as aforesaid to 
move and obtaine his or their Habeas Corpus as well out 
of the High Court of Chauncery or Court of Exchequer as 
out of the Courts of Kings Bench or Common Pleas or 
either of them And if the said Lord Chauncellor or 
Lord Keeper or any Judge or Judges Baron or Barons 
for the time being of the Degree of the Coife of any of 
the Courts aforesaid in the Vacation time upon view of 
the Copy or Copies of the Warrant or Warrants of Com- 
mittment or Detainer or upon Oath made that such Copy 
or Copyes were denyed as aforesaid shall deny any Writt 
of Habeas Corpus by this Act required to be granted be- 
ing moved for as aforesaid they shall severally f orfeite to 
the Prisoner or Partie grieved the summe of Five hun- 
dred pounds to be recovered in manner aforesaid. 

X. And bee it enacted and declared by the Authority 
aforesaid That an Habeas Corpus according to the true 
intent and meaning of this Act may be directed and runn 
into any County Palatine The Cinque Ports or other 
priviledged Places within the Kingdome of England 
Dominion of Wales or Towne of Berwicke upon Tweede 
and the Islands of Jersey or Guernsey Any Law or Usage 
to the contrary notwithstanding. 

XI. And for preventing illegall Imprisonments in 
Prisons beyond the Seas. Bee it further enacted by the 
Authoritie aforesaid That noe Subject of this Realme 
that now is or hereafter shall be an Inhabitant or Resiant 
of this Kingdome of England Dominion of Wales or 
Towne of Berwicke upon Tweede shall or may be sent 
Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir 
or into any Parts Garrisons Islands or Places beyond the 
Seas which are or at any time hereafter [shall be] within 
or without the Dominions of His Majestic His Heires or 
Successors and that every such Imprisonment is hereby 
enacted and adjudged to be illegal and that if any of the 
said Subjects now is or hereafter shall bee soe imprisoned 
[every such person and persons soe imprisoned] shall and 
may for every such Imprisonment maintaine by virtue of 
this Act an Action or Actions of false Imprisonment in 
any of His Majestyes Courts of Record against the per- 
son or persons by whome he or she shall be soe committed 
detained imprisoned sent Prisoner or transported contrary 



1679] TEXT 437 

to the true meaning of this Act and against all or any 
person or persons that shall frame contrive write seale or 
countersigue any Warrant or VVriteing for such Com- 
mittment Detainer Imprisonment or Transportation or 
shall be adviseing aiding or assisting in the same or any 
of them and the Plaintiff e in every such Action shall have 
Judgement to recover his treble Costs besides Damages Treble Costs 
-which Damages soe to be given shall not be lesse then ^^^ Damages. 
Five hundred pounds. In which Action noe delay stay 
or stopp of Proceeding by Rule Order or Command nor 
noe Injunction Protection or Priviledge whatsoever nor 
any more then one Imparlance shall be allowed [except- 
ing such Kule of the Court wherein the Action shall 
depend made in open Court as shall bee thought in 
Justice necessary for speciall cause to be expressed in the 
said Rule] and the person or persons who shall know- 
ingly frame contrive write seale or countersigue any 
Warrant for such Committment Detainer or Transporta- 
tion or shall soe committ detaine imprison or transport The Per- 

. , . , , V son so com- 

any person or persons contrary to this Act or be any mjttino- or 

wayes adviseing aiding or assisting therein being lawfully acting disabled 
convicted thereof shall be disabled from thenceforth to arT™incur '^' 
beare any Office of Trust or Proffitt within the said Premunire 
Realme of England Dominion of Wales or Towne of ^^ ^- "• ^- ^■ 
Berwicke upon Tweede or any of the Islands Territories 
or Dominions thereunto belonging and shall incurr and 
sustaine the Paines Penalties and Forfeitm-es limitted 
ordained and provided in the Statute of Provision and 
Premunire made in the Sixteenth yeare of King Richard 
the Second and be incapeable of any Pardon from the -^J^^ ^/p°'^|'P' 
King His Heires or Successors of the said Forfeitures 
Losses or Disabilities or any of them. 

XII. [Provided alwayes That nothing in this Act 
shall extend to give benefitt to any person who shall 
by Contract in writeing agree with any Merchant or 
Owner of any Plantation or other person whatsoever to 
be transported to any parts beyond Seas and receive 
earnest upon such Agreement although that afterwards 
such person shall renounce such Contract.] 

XIII. Provided alwayes and bee it enacted That if ^o*" Trans- 
any person or persons lawfully convicted of any Felony persons con- 
shall in open Court pray to be transported beyond the victed of fel- 

Seas and the Court shall thinke fitt to leave him or them *^"^ ?' . . 
. -p . - ,, , , praj'ingtobe 

m Prison tor that purpose such person or persons may transported. 



438 



HABEAS CORPUS ACT 



[App. C 



Proviso re- 
specting Im- 
prisonment of 
Persons before 
1st June 1679. 



After Assizes 
Persons de- 
tained may 
have Habeas 
Corpus. 



be transported into any parts beyond the Seas. This 
Act or any thing therein contained to the contrary 
notwithstanding. 

XIV. Provided alsoe and bee it enacted That nothing 
herein contained shall be deemed construed or taken to 
extend to the Imprisonment of any person before the 
First day of June One thousand sixe hundred seaventy 
and nine or any thing advised procured or otherwise done 
relateing to such Imprisonment. Any thing herein con- 
tained to the contrary notwithstanding. 

XV. Provided alsoe That if any person or persons at 
any time resiant in this Realme shall have committed 
any Capitall Offence in Scotland or Ireland or any of the 
Islands or Forreigne Plantations of the King His Heires 
or Successors where he or she ought to be tryed for such 
Offence such person or persons may be sent to such place 
there to receive such Tryall in such manner as the 
same might have beene used before the makeing of 
this Act Any thing herein contained to the contrary 
notwithstandi ng. 

XVI. Provided alsoe and bee it enacted That noe 
person or persons shall be sued impleaded molested or 
troubled for any Offence against this Act unlesse the 
Partie offending be sued or impleaded for the same 
within Two yeares at the most after such time wherein 
the Offence shall be committed [in case the partie grieved 
shall not be then in Prison and if he shall be in Prison 
then within the space of Two yeares] after the decease of 
the Person imprisoned or his or her delivery out of Prison 
which shall first happen. 

XVII. And to the intent noe person may avoid his 
Tryall at the Assizes or Generall Goale- Delivery by pro- 
cureing his Removeall before the Assizes at such time as 
he cannot be brought backe to receive his Tryall there 
Bee it enacted That after the Assizes proclaimed for that 
County where the Prisoner is detained noe person shall 
be removed from the Common Goale upon any Habeas 
Corpus granted in pursuance of this Act but upon any 
such Habeas Corpus shall be brought before the Judge 
of Assize in open Court who is thereupon to doe what to 
Justice shall appertaine. 

' XVIII. Provided nevertheless That after the Assizes 
are ended any person or persons detained may have his 
or her Habeas Corpus according to the Direction and In- 
tention of this Act. 



1679] TEXT 439 

XIX. And bee it also enacted by the Authoritie 
aforesaid That if any Information Suite or Action shall 
be brought or exhibited against any person or persons 
for any Offence committed or to be committed against 
the Forme of this Law it shall be lawfull for such De- 
fendants to pleade the Generall Issue that they are not 
guilty or that they owe nothing and to give such speciall 
matter in Evidence to the Jury that shall try the same 
which matter being pleaded had beene good and sufficient 
matter in Law to have discharged the said Defendant or 
Defendants against the said Information Suite or Action 
and the said matter shall be then as availeable to him or 
them to all intents and purposes as if he or they had suf- 
ficiently pleaded sett forth or alledgedthe same matter in 
Barr or Discharge of such Information Suite or Action. 

XX. A^D because many times Persons charged with 
Petty Treason or Felony or as Accessaries thereunto are 
committed upon Suspicion onely whereupon they are 
Baileable or not according as the Circumstances make- 
ing out that Suspicion are more or lesse weighty which 
are best knowne to the Justices of Peace that committed 
the persons and have the Examinations before them or 
to other Justices of the Peace in the County Bee it there- 
fore enacted That where any person shall appeare to be 
committed by any Judge or Justice of the Peace and 
charged as Accessary before the Fact to any Petty Trea- 
son or Felony or upon Suspicion thereof or with Sus- 
picion of Petty Treason or Felony which Petty Treason 
or Felony shall be plainely and specially expressed in the 
Warrant of Committment that such Person shall not be 
removed or bailed by vertue of this Act or in any other 
manner then they might have beene before the makeing 
of this Act. 

The Statutes of tie Realm, V. 935-938. 31° Car. II. c. 2. 



APPENDIX D 

LIST OF AUTHOES CITED 

This list includes every work from which citations have been made, in the edition 
used. The names of the publishers are inserted for all copyright material; and 
the thanks expressed in the Preface for the privilege of using the extracts are here 
gratefully repeated. 

Charles Francis Adams. Imperialism and the Tracks of our Forefathers, 

Boston, Dana Estes & Co., 1899. 
Jnh-n Adams. Works. (Edited by Charles Francis Adams.) 10 vols. 

Boston, 1850-1856. 
John Adams and Abigail Adams. Familiar Letters during the Revolution. 

(Edited by Charles Francis Adams.) JS^ew York, Hurd & Houghton, 

1876. 
John Quincy Adams. Memoirs. (Edited by Charles Francis Adams). 12 

vols. Philadelphia, Lippincott, 1874-1877. 
American Historical Keview. 5 vols. New York, Macmillan, 1896-1900. 
Anonymous. America's Appeal to the Impartial World: wherein the Rights of 

Americans as Men, British Subjects, and as Colonists . . . are Stated and 

Considered. Hartford, 1775. 
Anonymous. A Plain State of the Argument between Great Britain and her 

Colonies. London, 1775. 
Anonymous. Proposals for Uniting the English Colonies on the Continent of 

America so as to enable them to act with Force and Vigour against their 

Enemies. London, 1757. 
Walter Bagehot. English Constitutional History. Oxford, Clarendon Press, 

1891. 
Frederic Bancroft. Life of William H. Seward. 2 vols. New York, 

Harper, 1900. 
George Bancroft, A History of the United States. (Author's Last Re- 
vision.) 6 vols. New York, Appleton, 1883-1885. 
Thomas Hart Benton. Historical and Legal Examination of , . . the 

Decision of the Supreme Court of the United States in the Dred Scott 

Case. New York, Appleton, 1851. 
Horace Binney. An Inquiry into the Formation of Washington's Farewell 

Address. Philadelphia, Parry & Macmillan, 1859. 



ADAMS— CUR TIS 441 

■William Blackstone. Commentaries. (Edited by William Draper Lewis.) 
4 books. Philadelphia, Welsh, Rees &, Co., 1897. 

James G. Blaine. Twenty Years of Congress, 1861-1881. 2 vols. Nor- 
wich, Henry BiU Publishing Co., 1884. 

Charles Borgeaud. Adoption and Amendment of Constitutions in Europe and 
America. (Translated by Charles D. Hazen.) New York, Macmillan, 
1895. 

Charles Borgeaud. The Rise of Modern Democracy in Old and New Eng- 
land. (Translated by Mrs. Birkbeck HiU.) London, Swan, Sonnen- 
scheiu & Co., and New York, Scribner, 1894. 

Emile Boutmy. The English Constitution. (Translated by Isabel M.Eaden.) 

London and New York, Macmillan, 1891, 
James Bryce. The American Commonwealth. Abridged edition. New 

York, Macmillan, 1896. 
Edmund Burke. Works. 9 vols. Boston, 1839. 

Gilbert Burnet. History of His Own Time. 2 vols. London, 1724-1734. 
Jacob Burnet. Notes on the Early Settlement of the Northwestern Territory. 

New Y'ork, 1847. 
Thomas Carlyle. Oliver Cromwell's Letters and Speeches, with Elucidations. 

4 vols. New York, Scribner, 1897. 
Francis BickneU Carpenter. Six Months at the White House with Abraham 

Lincoln. New York, Hurd & Houghton, 1866. 
Edward Channing. Students' History of the United States. New York, 

Macmillan, 1898. 
Jeremiah Chaplin. Words of our Hero, Ulysses S. Grant. Boston, Lo- 

throp, 188.5. 
Salmon Portland Chase. A Sketch of the History of Ohio. Cincinnati, 1833. 
"William Cobbett. The Parliamentary History of England, from the Earliest 

Period to the Year 1803. 36 vols. London, 1806-1820. (Usually called 

" Hansard's Parliamentary History.") 
Charles Carleton Coffin. Freedom Triumphant : Fourth Period of the War 

of the Rebellion, Sept., 1864, to close. New York, Harper, 1891. 
Congressional Globe. 109 vols. Washington, 1835-1873. 
Congressional Record. 33 vols, in 192. Washington, 1873-1900. 
Thomas M. Cooley. The General Principles of Constitutional Law. Boston, 

Little, Brown & Co., 1891. 
Bartholomew de Cotton. Historia Anglicana. (Edited by Henry Richards 

Luard.) London, Longmans, 1859. 
Edward Shepherd Creasy. Rise and Progress of the English Constitution. 

New York, Appleton, 1859. 
Benjamin Bobbins Curtis. Reports of Decisions in the Supreme Court of the 

United States. With Notes arid a Digest. 23 vols. Boston, Little & 

Brown, 1881. 

George Ticknor Curtis. Constitutional History of the United States. New 
York, Harper, 1889. 



442 AUTHORITIES [App. D 

"WiUiam Parker Cutler and Julia Perkins Cutler. Life, Journals, and 

Correspondence of B.ev. Manasseh Cutler. 2 vols. Cincinnati, Robert 

Clarke & Co., 188&. 
Kicliard. Henry Dana. JVheaton's Elements of International Law. Boston, 

Little, Brown & Co., 1866. 
Albert Venn Dicey. Lectures Introductori/ to the Study of the Law of the 

Constitution. London, Macmillan, 1885. 
Jeremiah. Dummer. A Defence of the New England Charters. London, 

1721. 
■William Archibald Dunning. Essays on the Civil War and Reconstruc- 
tion and Related Topics. New York, etc., Macmillan, 1898. 
Edinburgh Eeview. 192 vols. London, Longmans, 1806-1900. 
H. St. Clair Fielden. A Short Constitutional History of England. (Edited 

\>j W. Gray Etheridge.) London, Blackwell; Boston, Ginn, 1895. 
Sidney George Fisher. The Evolution of the Constitution of the United 

States. Philadelphia, Lippincott, 1897. 
John Fiske. The American Revolution. 2 vols. Boston, Houghton, Mifflin 

& Co., 1892. 
John Fiske. The Critical Period of American History, 1783-1789. Boston, 

Houghton, Mifflin & Co., 1899. 
Henry Jones Ford. The Rise and Growth of American Politics. New York, 

Macmillan, 1898. 
Paul Leicester Ford. Pamphlets on the Constitution. Brooklyn, P. L. Pord, 

1888. 
John Forster. Eminent British Statesmen. London, 1837. 
■William Forsyth. History of Trial hy .Jury. London, 1852. 
Sir John Fortescue. De Laudibus Legum Anglice. London, 1741. 
Edward Augustus Freeman. Historical Essays. Pourth Series. London 

and New York, Macmillan, 1892. 
Samuel Rawson Gardiner. Constitutional Documents of the Puritan. Revolu- 
tion, 1628-1660. 2 vols. Oxford, Clarendon Press, 1889. 
Samuel Rawson Gardiner. Student's History of England. London and 

New York, Longmans, 1895. 
Franklin Henry Giddings. Democracy and Empire. New York, Macmillan, 

1900. 
Daniel Coit Gilman. James Monroe. (American Statesmen Series.) Boston, 

Houghton, Mifflin & Co., 1883. 
■WiUiam Ewart Gladstone. Gleanings of Past Years. 7 vols. London, John 

Murray; New York, Scribner, 1878. 
Rudolph von Gneist. History of the English Parliament. London, Clowes ; 

New York, Putnam, 1892. 
Ulysses Simpson Grant. Personal Memoirs. 2 vols. New York, Charles L. 

Webster & Co., 1886. 
Horace Greeley. The American Conflict. 2 vols. Hartford, 0. D. Case & 

Co., 18G4-1867. 



CUTLER — JOHNS TON 443 

John Richard Green. A Short History of the English People. London, 

Macmillan, 1897. 
Francois Pierre Guillaume Guizot. The History of Civilisation, from the 

Fall of the Rornan Empire to the French Revolution. (Edited by C. S. 

Henry.) 4 vols. New York, Appleton, 1897. 
Henry Hallam. The Constitutional History of England, from the Accession 

of Henry VII. to the death of George II. 3 vols. London, 1855. 
Henry Hallam. View of the State of Europe during the Middle Ages. 2 

vols. New York, 1843. 
Alexander Hamilton. Works. (Edited by Henry Cabot Lodge.) 9 vols. 

New York, Putnam, 188.5-1886. 
Hansard's Parliamentary History. See William Cobbett. 
John Innes Clark Hare. American Constitutional Law, 2 vols. Boston, 

Little, Brown & Co., 1889. 
Harper's New Monthly Magazine. 100 vols. New York, Harper, 1850- 

1900. 
Albert Bushnell Hart. Formation of the Union, 1750-1829. New York, 

etc., Longmans, 1896. 
Albert Bushnell Hart. Introduction to the Study of Federal Government. 

(Harvard Historical Monograph, No. 2.) Boston, Ginn, 1891. 
Burke Aaron Hinsdale. The Old Northwest. New York, Townsend Mac- 

Coun, 1888. 
Henry Hitchcock. American State Constitutions : a Study of their Growth. 

New York, Putnam, 1887. 
George Frisbie Hoar. No Constitutional Power to Conquer Foreign Nations. 

Boston, Dana Estes & Co., 1899. 
George Frisbie Hoar. Oration delivered at the Celebration of the Centennial of 

the Founding of the Northwest at Marietta, Ohio, April 7, 1888. Washington, 

1888. 
Hermann von Hoist. The Constitutional and Political History of the United 

States. (Translated by J. J. Lalor and A. B. Mason.) 8 vols. Chicago, 

Callaghan & Co., 1889-1892. 
James K. Hosmer. Anglo-Saxon Freedom. New York, Scribner, 1890. 
John Codman Hurd. The Theory of our National Existence. Boston, Little, 

Brown & Co., 1881. 
Kollin C. Hurd. A Treatise on the Right of Personal Liberty, and the Writ 

of Habeas Carpus. Albany, W. C. Little & Co., 1876. 
John Alexander Jameson. A Treatise on Constitutional Conventions. 

Chicago, Callaglian & Co., 1887. 
John Franklin Jameson. Essays in the Constitutional History of the United 

States in the Formative Period. Boston, Houghton, MifHin & Co., 1889. 
Thomas Jefferson. Writings, being his Autobiography, Correspondence, and 

other Writings. (Edited by H. A. "Washington.) 9 vols. Washington, 

1853-1854. 
Alexander Johnston. The United States: its History and Constitution. 

New York, Scribner, 1889. 



444 AUTHORITIES [App. D 

Journal of the First Congress of the American Colonies. (Edited by Lewis 

Cruger.) New York, E. Winchester, 1845. 
Journals of Congress. Containing the Proceedings, 1774-1788. 13 vols. 

Publislied by order of Congress, Philadelphia, 1777-1788. 
Sir 'William Keith. Two Papers on the Subject of Taxing the British Colonies 

in America. London, 1767. 
"William Edward Hartpole Lecky. History of England in the Eighteenth 

Century. (London, Longmans.) 6 vols. New York, Appleton, 1882. 
Abraham Lincoln. Complete Works. (Edited by John G. Nicolay and John 

Hay.) 2 vols. New York, Century Co., 1894. 
George Livermore. An Historical Research respecting the Opinions of the 

Founders of the Republic on Negroes as Slaves. (Massachusetts His- 
torical Society.) Boston, John Wilson, 1862. 
Henry Cabot Lodge. George Washington. (American Statesmen Series.) 

2 vols. Boston, Houghton, Miiflin & Co, 1897. 
Henry Cabot Lodge. The Story of the Revolution. 2 vols. New York, 

Scribner, 1898. 
John Davis Long. Address before the Home Market Club, February, 1899. 

Boston, Home Market Club, 1899. 
James Russell Lowell. Prose Works. 5 vols. Boston, Houghton, Mifflin 

& Co., 1892. 
Thomas Babington Macaulay. Critical, Historical, and Miscellaneous Essays. 

(Loudon and New York, Longmans.) 6 vols. New York, Hurd & 

Houghton, 1866. 
Thomas Babington Macaulay. History of England. (London and New 

York, Longmans.) 5 vols. Boston, 1849. Also 8 vols. New York, 

Hurd & Houghton, 1866. 
Samuel W. McCall. Thaddeus Stevens. Boston, etc., Houghton, Mifflin 

& Co., 1899. 
■WUliam McKonley, Speech delivered at the Home Market Club, February 16, 

1899. Boston, Home Market Club, 1899. 
Sir James Mackintosh. History of England. 3 vols. Philadelphia, 1 830- 

1833. 
Andrew C. McLaughlin. History of the American Nation. New York, 

Appleton, 1899. 
John Bach McMaster. With the Fathers. New York, Appleton, 1897. 
James Madison. Letters and other Writings. 4 vols. Philadelphia, Lippin- 

cott, 1865. 
James Madison. Papers being his Correspondence and Reports of Debates. 

(Edited by Henry D. Gilpin.) 3 vols. Washington, 1840. 
■William of Malmesbury. English Chronicle. (Edited by J. A. Giles.) Lon- 
don, George Bell, 1883. 
John Marshall. A History of the Colonies planted by the English on the Con- 
tinent of North America. Philadelphia, 1824. 



JOURNAL — REDDA WAY 445 

Sir Thomas Erskme May. Constitutional History of England. (London and 

New York, Longmans.) 2 vols. New York, 1887. 
Dudley Julius Medley. A Student's Manual of English Constitutional History. 

Oxford, B. H. Blackwell, 1894. 
Roger B. Merriman. Life of Thomas Cromwell. (MS.) [In the Library of 

Harvard University.] 
John Torrey Morse, Jr. Abraham Lincoln. (American Statesmen Series.) 

Boston, Houghton, MifHin & Co., 1897. 
John Torrey Morse, Jr. John Quincy Adams. Boston, Houghton, Mifflin 

& Co., 1882. 
John Torrey Morse, Jr. Thomas Jefferson. (American Statesmen Series.) 

2 vols. Boston, Houghton, Mifflin & Co., 1897. 
Blisha Mulford. The Nation : the Foundations of Civil Order and Political 

Life in the United States. New York, Hard & Houghton, 1870. 
John G. Nicolay and John Hay. Abraham Lincoln : a History. 10 vols. 

New York, Century Co., 1890. 
Hezekiah Wiles. Principles and Acts of the Revolution in America. (Eeprint.) 

New York, A. S. Barnes & Co., 1876. 
Hezekiah Wiles. The Weekly Register. 73 vols. Baltimore, 1812-1848. 
James Otis. The Rights of the British Colonies Asserted and Proved. London, 

1766. 
The Outlook (weekly). New York, Outlook Co., 1897- 
Francis Palgrave. The Rise and Progress of the English Commonwealth, 

Anglo-Saxon Period. 2 pts. London, 1832. 
James Paterson. Commentaries on the Liberty of the Subject and the Laws 

of England relating to the Security of the Person. 2 vols. London, 

Macmillan, 1877. 
Edward Lilhe Pierce. Memoir and Letters of Charles Sumiier. 2 vols. Bos- 
ton, Roberts, 1893. 
Pohtical Science Quarterly. 14 vols. Boston, etc., Ginn, 1886-1899. 
Sir Frederick Pollock and Frederic William Maitland. History of 

English Law before the Time of Edward I. 2 vols. Cambridge (Eng.), 

University Press; Boston, Little, Brown, & Co., 1895. 
Thomas Pownall. The Administration of the Colonies. London, 1765. 
Pulpit and Rostrum. Sermons, Orations, etc. 31 nos. New York, H. H. 

Lloyd, etc., 1858-1866. 
David Ramsay. Tlie History of the American Revolution. 2 vols. Phila- 
delphia, 1789. 
Carman Fitz Randolph. Notes on the Foreign Policy of the United States, 

suggested by the War with Spain. New York, De Vinne Press, 1898. 
Cjrril Ransome. Advanced History of England. London, Rivingtons ; New 

York, Macmillan, 1896. 
"William Fiddian Reddaway. The Monroe Doctrine. Cambridge (Eng.), 
University Press, 1898. 



446 AUTHORITIES [App. D 

James Ford Rhodes. History of the United States from the Compromise of 
1850. 4 vols. New York, Macmillan, 1900. 

James D. Eicliardson, Editor. Messages and Papers of the Presidents, 
1789-1797. 10 vols. Washington, 1896-1899. 

John Codman Kopes. The Story of the Civil War. 3 vols. New York, 
Putnam, 1898. 

Christopher St. Germain. Doctor and Student ; or, Dialogues between a 
Doctor of Divinity and a Student in the Laws of England. London, 1761. 

John T. A. Sanborn. Report of the Decision of the Supreme Court of the 
United States in the Case of Dred Scott. Washington, 1857. 

James Schouler. Constitutional Studies, State and Federal. 5 vols. New 
York, Dodd, Mead & Co., 1897. 

James Schouler. History of the United States of America under the Consti- 
tution. 5 vols. Washington, W. H. Morrison, 1882-1891. 

Carl Sehurz. American Imperialism. (Address before tlie University of 
Chicago, January 4, 1899.) Boston, Dana Estes & Co., 1899. 

George Spence. The Equitable Jurisdiction of the Court of Chancery. 2 vols. 
London, 1846-1849. Philadelphia, T. & J. W. Johnson & Co. 

Statutes at Large, y?'o?n Magna Charta, to the End of the Last Parliament, 
176L 20 vols. (Edited by Owen Ruffhead.) London, 1763-1765. 

Statutes of the Realm, printed by command of His Majesty, King George 
the Third. 11 vols. London, 1810-1821. 

C. Ellis Stevens. Sources of the Constitution of the United States, consid- 
ered in relation to Colonial and English History. New York, Macmillan, 
1894. 

Joseph Story. Commentaries on the Constitution of the United States. Bos- 
ton, etc., 1833. 

"William Stubbs. The Constitutional History of England. 3 vols. Oxford, 
Clarendon Press, 1891. 

■William Stubbs. Select Charters and other Illustrations of English Consti- 
tutional History. Oxford, Clarendon Press, 1870. 

■William Graham Sumner. The Conquest of the United States by Spain. 
Boston, Dana Estes & Co., 1899. 

WilMam Graham Simmer. History of Banking in the United States. 2 vols. 
New York, Journal of Commerce, 1896. 

Ida M. Tarbell. Life of Abraham Lincoln. 2 vols. New York, McClure, 
Phillips & Co., 1900. 

Thomas Pitt Taswell-Langmead. English Constitutional History. London, 
Stevens & Haynes; Boston, Houghton, Mifflin & Co., 1896. 

Hannis Taylor. Origin and Growth of the English Constitution. 2 vols. 
Boston, Houghton, Mifflin & Co., 1889. 

Francis Newton Thorpe. Constitutional History of the American People. 
New York, Harper, 1898. 

Reuben Gold Thwaites. The Colonies, 1492-1750. New York, etc., Long- 
mans, 1897. 



RHODES— WOOLSEY 447 

George Fox Tucker. The Monroe Doctrine. Boston, George B. Eeed, 
1885. 

Josiah Tucker. A Letter from a Merchant in London to his Nephew in North 
America. London, 1766. 

Robert Walsh. An Appeal from the Judgments of Great Britain respecting 
the United States of America. Philadelphia, etc., 1819. 

George Wasliington. Writings. (Edited by Jared Sparks.) 12 vols. Bos- 
ton, 1837. — Also (edited by W. C. Ford) 14 vols. New York, Putnam, 
1889-1893. 

Daniel Webster. Works. (Edited by Edward Everett.) 6 vols. Boston, 
1851. 

PelatiaJi Webster. Remarks on a Pamphlet. Printed, 1784. 

Eoger of Wendover. Flowers of History. (Translated by J. A. Giles.) 

2 vols. London, 1849. 

Westel Woodbury Wllloughby. The Supreme Court of the United States, 
its History and Influence in our Constitutional System. Baltimore, Johns 
Hopkins Press, 1 890. 

Henry Wilson. History of the Rise and Fall of the Slave Power in America. 

3 vols. Boston, James R. Osgood, 1872-1877. 

Justin Winsor. Narrative and Critical History of America. 8 vols. 

Boston, Houghton, Mifflin & Co., 1887. 
Theodore S. Woolsey. America's Foreign Policy. New York, Century Co., 

1898. 



INDEX 



The names of the authors of documents are in boldface. 
Small Capitals. The titles of books cited are in italics. 



The titles of documents are in 



ABBEYS, rights of founders, 19. 
Abbott, Lyman, cited, 414. 

Act of Settlement, text, 138-140 ; 
contemporary exposition, 140 ; critical 
comment, 140-141. 

Adams, C. F., cited, 402, 440. 

Adams, G. B., cited, 40. 

Adams, John, on state governments, 
170 ; Worls, 173, 440 ; on Declaration 
of Independence, 188-191; Familiar 
Letters, 191, 440. 

Adams, John Quincy, cited, 253 ; on 
the Monroe Doctrine, 323; Memoirs, 
325, 440. 

Adjournment, of Parliament, 86, 92; of 
colonial legislatures, 184 ; of Congress, 
247, 248, 255. 

Agreement of the People, text, 79- 
85; critical comment, 100-114; a con- 
stitution, 83 ; fundamentals of, 84. 

Aids, imposition of, 13, 14, 44, 67; the 
three, 13 ; for common benefit, 44. 

Amendments, of Articles of Confedera- 
tion, 215 ; to the Constitution, 261- 
264, 37.3-375; how made, 258; limi- 
tation to, 259; not to be hasty, 295; 
Coffroth on, 375; Brown on, 376; 
Blaine on, 376; effect of Fifteenth on 
Fourteenth, 379. 

America, European control of, 322-326. 

Ameincan Historical Review, 41, 285, 
440. 

American History Leaflets, 204, 245, 
373. 

Amnesty, to King Charles' adherents, 
82. 

Andros, Sir Edmund, in New England, 
143. 

Anonj'mous, Plain State of the Argu- 
ment, 145, 440; Proposals for uniting 
the English Colonies, 147, 440; Amer- 
ica's Appeal to the Impartial World, 
150, 440. 



Appointing power, under the Constitu- 
tion, 255. 

Apportionment, of requisitions, 209; of 
direct taxes, 245, 251; of representa- 
tion, 245, 374. 

Arms, right to bear, 125, 261. 

Army, control of, 86, 208, 212, 250 ; ne- 
groes in, 364-366. — See also Standing 
Army. 

Articles of Confederation, text, 
204-216 ; contemporary exposition, 
216-220; critical comment, 220-226. 

Assizes, 14, 116. 

Atlantic Monthly, 402. 

Attainder, bill of, forbidden, 251, 252. 

Attaint, writ of, 52. 



BAGEHOT, Walter, cited. 31, 101, 
440. 

Bail, not to be excessive, 125, 168, 262 ; 
right to, 115-116, 233. 

Bancroft, Frederic, cited, 371, 440. 

Bancroft. George, cited, 240, 440; on 
Dred Scott decision, 351. 

Bankruptcy, control of, 250. 

Bartholomew de Cotton, on foreign mili- 
tary service, 45; Historia Anqlicana, 
45," 441. 

Benevolences, forbidden, 67, 70; ex- 
acted, 68. 

Benton, Thomas H., on Dred Scott de- 
cision, 349; Examination of the Dred 
Scott Case, .351, 440. 

Bill of Rights, text, 122-132; con- 
temporary exposition, 132; critical 
comment, 132-137; of Virginia, 166; 
of Northwest Territory, 233; of the 
United States, 261. 

Billeting. — See Quartering. 

Bills of credit, of colonies, 147; control 
of 212, 213, 252. 

Binney, Horace, cited, 309, 440. 



450 



INDEX 



Blackstone, Sir William, cited, 54, 118, 
140,441. 

Blaine, James G., on the reconstruction 
amendments, 376; Twenty Years of 
Congress, 380, 441. 

Blyth, Joseph, on Washington's Fare- 
well Address, 308. 

Bollen, William, Journals of Congress, 
164. 

Borgeaud, Charles, cited, 111, 176, 441. 

Boston Herald, 399, 401. 

Boutmy, £mile, cited, 39, 441. 

Brown, J. S., ou the Thirteenth Amend- 
ment, 376. 

Brvce, James, cited, 177, 256, 282, 356, 
381, 441. 

Burgage, tenure, 17. 

Burgess, J. W., cited, 411. 

Burke, Edmund, cited, 27 ; on taxing 
colonies, 162; Speech on Conciliation, 
102; Works, 162, 441. 

Burnet, Gilbert, on Habeas Corpus Act, 
117: History of His Own Times, 117, 
132,140,441; on Bill of Rights, 132; 
on Act of Settlement, 140. 

Burnet, Jacob, cited, 240, 441. 



CANADA, and the Confederation, 214. 
Capitation tax, to be apportioned 

251. 
Carlvle, Thomas, Life of Cromwell, 99, 

441. 
Carpenter, F. B., on the Emancipation 

Proclamation, 366 ; Six Months at the 

White House, 367, 441. 
Carteret, Lord, letter to, 142. 
Castle-guard, 16. 
Census, decennial, 245. 
Chamberlain, Mellen, cited, 164. 
Chancery, king's, 51. 
Channing, Edward, cited, 180, 441. 
Chaplin, Jeremiah, Words of our Hero, 

366, 441. 
Charles I., on the Petition of Right, 72; 

Speech, 72 ; amnestj' to his adherents, 

82. 
Charters, of Henrj- 1., 2; Magna Charta, 

9 ; Confirmatio Chartarum, 43 ; of 

the Forest, 43 ; of New England, lost, 

143, 185 ; recovered, 143 ; rights of 

colonies under, 148, 149. 
Chase, S. P., cited, 239, 441. 
Chatham, Earl of. — See Pitt, William. 
Chief Justice, at impeachment trials, 247. 
Church, freed, 2, 10; of England, king 

to commune with, 138. — See also 

Religion. 
Citizens, of other States, rights of, 205, 

257; of the United States, negroes, 

342, 344, 345, 347 ; who are, 346, 347, 



373; protection of, 374; state and 
national, 343, 347. 

Civil cases, jury trial in, 51, 168, 202. 

Civil rights, ancient, to be respected, 
13, 15, 128 ; equal protection of, guar- 
anteed, 374; in colonies, 397. — See 
also Personal liberty, Property, Re- 
ligion. 

Civil War, reunion, 358; disabilities 
resulting from, 374; debt honored, 
374 ; Southern debt repudiated, 375. 

Cleveland, Grover, cited, 334. 

Cobbett, William, Parliamentary His- 
tory of England, 72, 79, 85, 441. 

Coffin, C. C, 'cited, 441. 

Coffroth, A. H., on Thirteenth Amend- 
ment, 375. 

Coke, Sir Edward, cited, 27. 

Colonies, New England charters, 143, 
185 ; defended, 144 ; charges against, 
144; control of, 144, 146, 101,163; union 
advised, 146 ; rights of legislation, 
146; claim Magna Charta and rights 
of British subjects, 144, 147, 149, 156, 
100; charter rights of, 142-150; taxa- 
tion and representation, 156, 159, 160, 
161, 162 ; grants by, 159, 162 ; peti- 
tion Parliament, 164 ; grievances of, 
184. — See also Cuba, Philippines, 
Porto Rico. 

Commander-in-chief, 213 ; the president, 
255. 

Commerce, colonial, cut off, 185 ; con- 
trol of, 207, 209, 250 ; uniform regu- 
lation of, 252 ; policy of the United 
States, 303. 

Commissioners for Ecclesiastical Causes, 
illegal, 125. 

Common pleas, court of, to be station- 
ary, 14. 

Common tribute, forbidden, 3. 

Commonwealth of England, government 
of, 85. — See also Council of State, 
Parliament, Lord Protector. 

Confederation, Articles of, 204-216 ; ob- 
jects of, 205; limitations of power of 
states in, 207; committee of the states, 
212,214; to be perpetual and supreme, 
215; amendment of, 215; ratification 
of, 215 ; Northwest Territory a part 
of, 234. — See also Congress of the 
Confederation. 

CONFIKMATIO Chartarum, text, 43- 
45 ; contemporarv exposition, 45 ; 
critical comment, 45-48. 

Congress of the Confederation, 
organization, 206, 213: votes in, 207; 
immunities of members, 207 ; powers 
of, 209-214 ; majority in, 213 ; North- 
west Ordinance, 228-236 ; territo- 
rial delegate to, 233. 



INDEX 



451 



Congress, Continental, instructions 
to agents, 164 ; advises formation of 
state governments, 172, 173; Decla- 
ration of Independknck, 183-188; 
Articles of Confederation, 204- 
216. 

Congress of the United States, organi- 
zation, 245; elections, 245-247 ; ses- 
sions, 247, 255; quorum, 247 ; control 
over members, 247, 248; journals, 248 ; 
adjournment, 247, 248, 255; compen- 
sation, 248; immunities, 248; j'eas 
and nays in, 248; members not eligi- 
ble to "office, 248 ; procedure of bills, 
249 ; powers of, 249-251. 257, 258, 373- 
375; limitations, 251-252, 254, 261- 
263; interpretation of powers of, 313; 
responsible for government of colo- 
nies, 394, 398. — See also House of 
Representatives, Senate. 

Congressional Globe, 365, 366, 376,441. 

Congressional Sccord, 392, 441. 

Constitution, defined, 148. 

Constitution of the United States, 
text, 245-264,373-375; contemporary 
exposition, 264-273; critical comment, 
273-283; why ordained, 245; how 
amended, 258; amendments to, 261- 
264, 373-375 ; supreme law, 259, 315 ; 
when established, 260 ; Washington 
on, 294 ; implied powers of, 313; ne- 
groes not citizens under, 342, 344, 
345; interpretation of, 343, 344 ; 
slavery under, 345, 350 ; does not ex- 
tend to territories, 349 ; and equal- 
itv, 352. — See also Congress, United 
States. 

Contenement, 15, 145. 

Contracts, obligations of, not to be im- 
paired, 234, 252. 

Cooley, T. M., cited, 276, 381, 441. 

Copyrights and patents, laws for, 250. 

Coronation Oath and Charter of 
Henry I., text, 1-5 ; contemporary 
exposition, 5-6 ; critical comment, 
6-8. 

Cotton. — See Bartholomew. 

Council of State, appointment of, 81, 85, 
92, 93; powers of, 81, 94, 95; term, 
81 ; trial of, 92; to take oath, 97. 

Courts, for trials upon certain writs, 14; 
common pleas to be stationary, 14; 
pleas of the crown, 15; forest, 19; 
illegal, 124,125; of the Confederation, 
210; of Northwest Territory, 229; 
Congress to establish inferior, 250; of 
the United States, 256; jurisdiction of, 
256, 263 ; procedure in, 257, 262. 

Coxe, Tench, on the Constitution, 271. 

Cravens, J. A., on the Emancipation 
Proclamation, 364. 



Creasy, E. S., cited, 74, 118, 441. 

Criminal Cases. — See Jury. 

Cromwell, Oliver, Lord Protector, 95 ; 
on Instrument of Government, 98. 

Cromwell, Thomas, on Parliament, 35- 
37. 

Crown, election to, 2, 5, 6; interference 
in parliamentarj"- elections, 36, 124; 
prerogative of, 72, 125, 144; conferred 
bv Parliament, 126, 129; succession 
fixed, 127, 129, 130; king to commune 
with Church of England, 138; restric- 
tions on king's movements, 139; de- 
fence of foreign dominions of, 139; 
and colonies, 145, 149, 156-157, 184- 
186. 

Cuba, condition of, 389; independence 
recognized, 390; United States and, 
390-394. 

Curtis, Benjamin R., dissent from Dred 
Scott decision, 346, 441. 

Curtis, G. T., cited, 174,441. 

Custom duties, control of, 44, 249, 251, 
252. 

Cutler, W. P. and J. P., Life of Rev. 
Manasseh Cutler, 238, 442 ; cited, 242. 



DANA, R. H., cited, 329, 442. 
Dane, Nathan, on Northwest Or- 
dinance, 237. 

Darrein presentment, trial upon writ of, 
14. 

Declaration of Independence, text, 
183-188; contemporar}' exposition, 
188-192 ; critical comment, 192-203. 

Declaration of Rights, text, 166- 
169; contemporary' exposition, 169- 
173; critical comments, 173-181. 

Declaration of Rights and Griev- 
ances OF the Colonists in Amer- 
ica, text, 155-157; contemporary ex- 
position, 158-164 ; critical comment, 
164-166. 

Defence of the New-England 
Charters, text, 142-144; contem- 
porary exposition, 144-150; critical 
comment, 150-154. 

Delegated powers, 205, 263. 

Delegates, to Congress of Confederation, 
206; territorial'; 2-33. 

Despotism, from political partisanship, 
296. 

Dicey, A. V., cited, 120, 141, 442. 

Dickinson, John, on the Constitution, 
271. 

Direct taxes, to be apportioned, 245, 
251. 

Dispensation of laws, 125, 168; forbid- 
den, 131; exceptions, 131. 

District of Columbia, control of, 251. 



452 



INDEX 



Dower, 3, 12; preference to widow's 

right of, 13. 
Deed Scott Decision, text, 340-349; 

contemporary exposition, 349-353 ; 

critical comment, 354-357; statement 

of the case, 341; dissent, 346. 
Dummer, Jeremiah, Defence of 

THE New-England Charters, 142- 

144, 442. 
Dunning, W. A., cited, 369, 382, 442. 



THDINBUEGH REVIEW, 73,164, 

-^ 442, 

Education, fostered, 234; and govern- 
ment, 299; in colonies, 397. 

Edward the Confessor, his laws restored, 
4, 6, 25. 

Edward I., Summons to Parlia- 
ment, 34-35; Confirmatio Char- 
TAKUM, 43-45. 

Elections, for parliament, 36, 80, 87-90 ; 
freedom of, 84,124, 125, 167; judge 
of legislative, 91, 247 ; congressional, 
206, 245-247; presidential, 253-254, 
263-264. — See also Suffrage. 

Electors of president, 253, 374; legisla- 
tors and officials not to be, 253. 

Ellis, G.E., cited, 200. 

Emancipation, compensated, recom- 
mended, 359, 361. — See also Procla- 
mation. 

Eminent domain, exercise of right of, 
234, 262. 

Equality, natural, 166, 183; Constitu- 
tion ijiased upon, 352. 

Escheat, service of an, 18. 

Eulogies and Orations on Washington, 
307, 308, 309. 

Excise, control of, 249 ; to be uniform, 
249. 

Executive power, in the Commonwealth, 
81, 85; in the United States, 253; 
duty of heads of departments, 255. 
— See also Lord Protector, President. 

Expenditures, regulation of, 93, 252. 

Export duties, forbidden, 251, 252. 

Ex post facto laws, forbidden, 251, 252. 



-piEDERALIST, 268. 
••*- Fee-farm, tenure, 17. 
Feilden, H. St. C, cited, 47, 442. 
Fifteenth Amendment, text, 375; 

contemporary exposition, 376-380; 

critical comment, 380-387. 
Fines, not to be arbitrary or excessive, 

4, 15, 126, 168,233, 262"; liow assessed, 

15; John to give up unjust, 21; illegal 

to grant future, 126. 
Fisher, S. G., cited, 178, 226, 442. 



Fiske, John, cited, 202, 225, 442. 

Ford, H. J., cited, 225, 442. 

Ford, P. L., Pamphlets on the Constitu- 
tion, 267, 271, 272, 442. 

Foreign relations, power over, 86, 207, 
209, 255, 256; alliances to be avoided, 
301, 303 ; policv of the United States, 
300-305, 322-326, 401. 

Foreigners, removed, 19, 20; not eli- 
gible to office, 139. 

Forest, king's, retained, 4; reduced, 19 ; 
court, attendance at, 19; abatement 
of evil customs, 19 ; charter confirmed, 
43. 

Forster, John, 442. 

Forsyth, William, cited, 57, 442. 

Fortescue, Sir John, on civil procedure, 
51; De Laudibus Legum Anglice, 54, 
442. 

Fourteenth Amendment, text, 373- 
375; contemporary exposition, 376- 
380; critical comment, 380-387. 

Franklin, Benjamin, on Stamp Act, 158; 
Political, Miscellaneous, and Philo- 
sophical Pieces, lb9 ; on the Constitu- 
tion, 264. 

Freedom, of the press, 168; of speech, 
126, 207, 261. 

Freeman, Edward, cited, 39, 442. 

Freeman's Journal, on banks in 1819, 
317. 

Free tenants, in chief, to be summoned to 
council, 13; aids from, 14; services 
of, 14. 

Fugitives, from justice, 206, 257; from 
labor, 258, 360, 361. — See also Slav- 
ery. 



GARDINER, S. R., cited, 8, 32, 40, 
76, 104, 442. 

General Council, to impose aids, 13; 
how summoned, 13; organization, 13. 
— See also Parliament. 

General warrants, 168, 188, 261. 

General welfare, power to tax for, 249. 

George III., and colonies, 157, 184. 

Giddings, F. H., cited, 421, 442. 

Oilman, D. C, cited, 331, 442. 

Gilpin, H. D., Madison Papers, 267. 

Gladstone, W. E., cited, 275, 442. 

Gneist, Rudolf von, cited, 32, 47, 76, 
442. 

Government, object of, 167, 183; best 
form, 167 ; right to change, 167, 183, 
294; uniform, 169; preservation, 169, 
290-304; obedience to, 294 ; necessitv 
of an efficient, 294, 295; stability, 
295; separation of powers, 297; re- 
ligion, moralitj', and, 298; education 
and, 299. — See also Constitution, 



INDEX 



453 



Republican government, United 
States. 

Governor of territory, appointment, 229 ; 
qualifications, 229 ; duties, 230, 232 ; 
veto, 232. 

Grant, U. S., on negro soldiers, 366; 
General Order, 366, 442. 

Grants, colonial, 159, 162. 

Great Seal, power of, 51. 

Greeley, Horace, on Dred Scott decision, 
352; American Confiict, 353, 442. 

Green, J. R., cited, 7, 22, 29, 59, 101, 
104, 134, 197, 443. 

Guaranty, of immunities of citizens, 
257; of republican form of govern- 
ment, 258; of public debt, 214, 259, 
375; of equal protection of the laws, 
374. 

Guizot, F. P. G., cited, 133, 443. 



HABEAS CORPUS, forerunner of, 
17; evaded, 69; act, 115-117, 431- 
439; in territories, 233; suspension of, 
251. 

Habeas Corpus Act, text, 115-117, 
431-439 ; contemporary exposition, 
117; critical comment, 118-121. 

Hallam, Henrv, cited, 6, 27, 37, 45, 72. 
100, 443. 

Hansard. — See Cobbett. 

Hamilton, Alexander, on the Con- 
federation, 219; Works. 219, 269, 443; 
on the Constitution, 267, 268. 

Hare, .J. I. C, cited, 319, 443. 

Harper^s Mayazine, 339, 414, 443. 

Hart, A. B., cited, 224, 280, 338, 386, 
412, 443. 

Henry I., Coronation Oath and 
Charter, 1-5; William of Malmes- 
bury on, 5; Roger of Wendover on, 6. 

Hinsdale, B. A., cited, 241, 443. 

Hitchcock, Henrv, cited, 173, 443. 

Hoar, G. F., cited, 240, 408, 443. 

Hoist, H. E. von, cited, 198, 223, 329, 
354, 443. 

Hosmer, J. K. cited, 38, 77, 109, 135, 
443. 

House of Representatives, apportion- 
ment, 245, 374 ; election to, 245-247; 
qualifications, 245, 374 ; number in, 
246 ; powers of, 246, 247, 248, 253, 
264. — See also Congress. 

Howard's Reports, 340. 

Hurd, J. C, cited, 278. 443. 

Hurd, R. C, cited, 118, 443. 



[MMUNITIES, of legislators, 69, 126, 
L 207, 248; of citizens guaranteed, 
257, 374. 



Impeachment, pardon not pleadable to, 

140, 255 ; in United States, 246, 247, 

255, 256. 
Implied powers, 251, 313. 
Imposts, control of, 249, 252; uniformity, 

249. 
Impressment, 186. 
Inalienable rights, 148, 166, 183, 
Independence, declared, 187; forced by 

the people, 191. 
Indians, in Revolution, 186; trade, 211, 

250; treatment of, 234; not taxed, 

245. 
Inquest. — See Jurj'. 
Inquisition of life or limb, writ of, 17. 

— See also Habeas Corpus. 
Instrument of Government, text, 

85-98; contemporary exposition, 98- 

99; critical comment, 100-114. 
Insurrections, suppression of, 258. 
Invasion, protection against, 258. 



JAMES II., arraigned, 323 ; abdicated, 
124, 129. 

Jameson, J. A., cited, 174, 221, 443. 

Jameson, J. F., 280, 443. 

Jefferson, Thomas, on Declaration of In- 
dependence, 192; Works, 192, 220, 
273, 326, 443; on the Confederation, 
219; on the Constitution, 272; on the 
Monroe Doctrine, 325. 

Jews, regulation of debts due, 12, 13. 

John, Magna Chart a, 9-25; prom- 
ises restorations, 20, 21; enforcement 
of Magna Charta on, 22. 

Johnston, Alexander, cited, 367, 443. 

Journal of First Congress, 155, 444; 
legislative, 214, 248 ; Journals of Con- 
gress, 164, 228, 444. 

Judges, commission, 139, 256; salaries, 
139,256; removal, 139; independence, 
171, 172, 185. 

Judicial power of the United States, 
how vested, 256. — See also Courts. 

Jurors, qualifications, 51-52, 126'; pen- 
altv for false verdict, 53; treatment, 
54;- return, 126. 

Jurv, trial bv, for embezzling a record, 
51; in civil cases, 51, 168, 262; ad- 
vantages of, 53; abuse, 124; right of 
colonies to, 156, 185 ; in criminal cases, 
168, 262, 897; in territories, 233; in 
United States courts, 257, 262. — See 
also Jurors. 

Justiciaries, 14. 



KEITH, Sir William, on colonial 
rights, 160; Taxing the British 
Colonists, 161, 444. 



454 



INDEX 



King. — See Crown. 
King's Bencli, illegal use, 124. 
Knight's fee, regulated, 4, 14; priority 
of, 17. 



LAND, seizure for debt, 12; of felons, 
16. — See also Property. 

Laws, paramount, 18, 19, 68, 69, 71, 82, 
168, 234; faithful execution of, 256; 
Constitution the supreme, 259; due 
process, 262, 374; not violated by 
Missouri Compromise, 349; equal 
protection guaranteed, 374. 

La}' tenement, 15. 

Lecky, W. E. H., cited, 199, 444. 

Legislative power, how vested, in Com- 
monwealth, 85, 94; in the United 
States, 245. — See also Congress, 
Northwest Territory, Parliament. 

Legislative punishments, forbidden, 82, 
251, 252. 

Lincoln, Abraham, Peoclamation 
OF Emancipation, 358-364 ; Com- 
plete Worhs, 358, 3G2, 444; on Eman- 
cipation Proclamation, 366, 367. 

Livermore, George, cited, 197. 444. 

Loans, forced, forbidden, 67; exacted, 
68. 

Lodge, H. C, cited, 202, 416, 444. 

London, aids, 13; ancient liberties, 13; 
gives up charter, 143. 

Long, J. D., on duty to dependencies, 
399; Address before the Home Market 
Club, 401, 444. 

Lord Protector, chief magistrate, 85; 
assisted by council, 85; writs in his 
name, 85;" powers, 86, 92, 94; succes- 
sion, 95; Oliver Cromwell first, 95; 
to take oath, 97. 

Lowell, J. E., cited, 380, 444. 

Luffman, J., cited, 132. 



MACAULAY, T. B., cited, 46, 74, 
100, 133, 164, 444. 

McCall, S. W., cited, 370, 444. 

McCuLLOCH VS. The State of Mary- 
land, text, 312-316; contemporary 
exposition, 316-318 ; critical comment, 
318-320. 

McKinley, William, Annual Mes- 
sages, 388-397 ; on war with Spain, 
388-391, 398; on relation with Cuba, 
390-394; on duty to dependencies, 
391, 394-399; Speech at the Home 
Market Club, 399, 444. 

Mackintosh, Sir James, cited, 28, 444. 

McLaughlin, A. C, cited, 284, 384-, 
444. 

McMaster, J. B., cited, 337, 444. 



Madison, James, on Monroe Doctrine, 
326 ; Works, 327, 444. 

Magna Chakta, text, 9-25; contem- 
porary exposition, 25-26; critical 
comment, 27-33 ; enforcement, 22 ; 
confirmed, 43; pleadable, 43; para- 
mount law, 43; read in churches, 43; 
penalty for breaking, 43; in Petition 
of Right, 68, 69 ; claimed by colonists, 
144, 147, 159. 

Maletote of wools, released, 44. 

Malmesbury, William of, 5, 444. 

Manors, in king's demesne, rent of, 15. 

Marque and reprisal, control of letters, 
207, 209, 213, 250, 252. 

Marriage, freedom, 2, 3. 

Marshall, John, cited, 152, 444; deliv- 
ers McCuiloch vs. Maryland decision, 
312. 

Martial law, in time of peace, 69, 70; 
revoked, 71 ; in United States, 262. 

Mason, George, on the Constitution, 267. 

Mason, J. M., on Washington's Fare- 
well Address, 308. 

May, Sir T. E., cited, 120, 445. 

Measures. — See Weights. 

Medley, D. J., cited, 113, 445. 

Merchants, security and freedom of 
transit, 18. 

Merriman, R. B., Life of Thomas Crom- 
well, 36, 445. 

Message, the president's, 255. 

Military service, abroad, 45, 81: im- 
pressment of colonists, 186. 

Militia, of Commonwealth, 82; a safe- 
guard, 168, 208, 261; control of, 250. 

Mi not, G. R., on Washington's Farewell 
Address, 308. 

Missouri Compromise, unconstitutional, 
345; and rights of property, 345, 349. 

Monev, regulation and coinage, 211, 
213^250, 252; power to borrow, 212, 
213, 250; counterfeiting, 250. 

Monroe, James, Monkoe Doctrine, 
321-323. 

Monroe Doctrine, text, 321-323; 
contemporary exposition, 323-328 ; 
critical comment, 329-339. 

Moralitj' and government, 298-299. 

Morse, J. T., cited, 330, 370, 445. 

Morte d'Ancestor, trial upon writ of, 14. 

Mulford, Elisha, cited, 221, 445. 



NATURALIZATION, obstruction of, 
184; control of, 250. 
Navv, under the Commonwealth, 86, 93 ; 

control of, 207, 212, 250. 
Negroes, citizenship, 342, 347, 373; in- 
ferior race, 343; soldiers, 364, 366; 
suffrage, 375, 379. 



INDEX 



455 



Nicolay, J. G., and Hay, J., cited, 368, 
445. 

Niles, Hezekiah, on McCulloch vs. 
Maryland, 316; M/es' Weekly Reg- 
ister, 317, 318, 445. 

Nobility, titles forbidden, 207, 252. 

Northwest Ordinance, text, 228- 
236 ; contemporary exposition 237- 
238; critical comnient, 238-243. 

Northwest Territory, property in, 228; 
government, 229-233; future state- 
hood, 233, 235, 236; compact with, 
233; bill of rights, 233; part of the 
Confederation, 234; control of public 
domain, 235 ; free waterways, 235 ; 
slavery, 236. 

Novel disseisin, trial upon writ of, 14. 

Nugent, Lord, cited, 72. 



OATH, of Lord Protector, 97; pre- 
scribed by Parliament, 127; coro- 
nation, 1, 130; of territorial officers, 
232; of president, 254; to support the 
Constitution, 259. 

Oificers, obedience to the laws, 19, 71; 
responsible to the people, 167; posi- 
tions not hereditary, 167 ; rotation, 
167; legislators not eligible, 248, 253; 
foreign favors, 252; appointment, 255; 
commission, 256; impeachable, 256; 
oath, 259; religious test, 259; disa- 
bilities from Civil War, 374. 

Olney, PJchard, cited, 310, 334; on the 
Philippines, 401; Growth of our For- 
eign Policy, 402. 

Otis, James, on colonial rights, 159; 
Rights of the British Colonies, 160, 
445. 

Outlook, 416, 445. 

Oyer and terminer, sessions of, 116. 



PAINE, Thomas, on Washington's 
Farewell Address, 307. 

Palgrave, Sir James, cited, 27, 445. 

Pardon, to murderers, 4; power of Lord 
Protector, 86, 93; not pleadable to 
impeachment, 140, 255; presidential 
power, 255. 

Parliament of England, germ of, 13; 
summons to, 34, 87-92; qualification 
of members, 35, 90, 91. 139; powers 
of, 35, 36, 81-84, 86, 92, 94-96, 125- 
126; limitations, 81-84, 92; elections 
to, 36, 80, 84, 87-92, 124-125 ; Stat- 
ute, 8 Henry VI. Cap. 12, 49-51; 
Petition of Right, 67-71; Rump, 
to dissolve, 79, 84; number of mem- 
bers of, 80, 87; apportionment, 80, 87; 
quorum, 80, 91; term, 81, 84,86; ex- 



tra, 81, 91-92 ; sessions, 79, 81, 86, 92, 
126; adjournment, 86, 92; resistance 
inarms to, 84; Habeas Corpus Act, 
115-117, 431-439; Bill of Rights, 
122-132; arraigns James 11,123-124; 
the Convention, 124; freedom of 
speech in, 126 ; claims certain rights, 
126; confers the crown, 126, 129; 
fixes the succession, 127, 129-130; 
prescribes oath of allegiance and su- 
premacy, 127; anti-Papist accession 
oath, 131; Act of Settlement, 
138-140; foreigners excluded from, 
139; and colonies, 144-146, 158-163, 
185; colonial representation in, 156, 
160-161; colonial opinion of, 158; col- 
onies petition, 164 ; arraigned, 185. 
— See also General Council. 

Patents, laws for, 250. 

Paterson, James, cited, 119, 445. 

Peace and war, power, 86, 92, 208, 209, 
213, 250, 252. 

People, rights of, 4, 128 ; source of 
power, 167, 183; responsibility to, 
167 ; force independence, 191 ; re- 
served power, 263, 294. 

Personal libertj', security of, 17, 18, 70, 
125, 168, 261-262, 374,'' 397; violated, 
68-69, 123, 185. — See also Bail, Civil 
Rights, Fines, Habeas Corpus, Jurj', 
Punishments, Petition. 

Petition, right of, 125, 261; colonists 
claim, 157. 

Petition of Right, text, 67-71 ; con- 
temporary exposition, 72; critical 
comment, 72-77. 

Petty serjeanty, tenure, 17. 

Philippines, ceded, 392; Congress re- 
sponsible for government, 394, 395; 
duty of United^ States, 394, 398-401; 
future development, 395; education, 
397; civil rights, 397; effect on for- 
eign policy of United States, 401. 

Pierce, E. L., cited, 369, 445. 

Piracy, laws against, 209, 250. 

Pitt, William, on reconciling the col- 
onies, 163; Speech in the House of 
Lords. 163. 

Pleas of the crown, minor officials not 
to hold, 15. 

Political partisanship, dangers, 296. 

Political Science Quarterly, 411, 445. 

Pollock and Maitland, cited, 7, 32, 445. 

Porto Rico, military government, 392; 
civil government, 396; local self-gov- 
ernment, 396; education, 397; civil 
rights, 397. 

Post-office, control, 212, 250. 

Pownall, Thomas, on colonial rights, 
147; Administration of the Colonies, 
148, 445, 



456 



INDEX 



Prrecipe, writ, forbidden, 17. 

Pramunire, penaltA' incurred, 117. 

Precedent, fear of "illegal, 71, 126. 

Prerogative, royal, 72, 125, 144. 

President, veto", 249; term, 253; elec- 
tion, 253,263; qualifications, 254; re- 
muneration, 254; succession, 254; oath, 
254 ; duties and powers, 255-256 ; im- 
peachment, 247, 256; war powers, 
363. 

Preston, H. W., Documents, 166. 

Privy Council, illegal use, 68; duties, 
139; restriction on membership, 139. 

Prize courts, control of, 209, 250. 

Proclamation of Emancipation, 
text, 358-364; contemporary exposi- 
tion, 364-367 ; critical comment, 367- 
372; constitutional basis, 363, 364; 
results, 364; call for, 365 ; Lincoln on, 
366, 367. 

Property, disposition of personal, 4, 16; 
Seizure for debt, 12 ; protection of, 16, 
83, 166, 234, 261-262, 374 ; in North- 
west territorj', 228 ; in slaves, 345 ; 
rights and Missouri Compromise, 345, 
349. 

Public debt, assumed and faith pledged, 
234, 259; unquestioned, 374; South- 
ern, repudiated, 375. — See also Public 
faith. 

Public domain, in Northwest Territory, 
235; control of, 251, 258. 

Public faith and credit, to be kept, 82, 
97, 214, 259, 299. 

Pulpit and Rostrum, 352, 445. 

Punishments, not to be cruel or unusual, 
126, 168, 233, 262. 

QUARTERING troops, 69-70, 185, 
261. 
Quorum, of Parliament, 80, 91; of Con- 
gress, 247. 
Quo warranto, writ, against Massachu- 
setts' charter, 143. 



RAMSAY, David, on Declaration 
of Independence, 191; American 

Revolution, 191, 445. 
Randolph, C. F., cited, 403, 445. 
Ransome, Cyril, cited, 8, 32, 39, 112, 

136, 141, 445. 
Reconstruction amendments, 373-375; 

contemporarj'- exposition, 375-380; 

critical comment, 380-387. 
Records, legal, amendment, 49-50; 

felony to embezzle, 51; power of 

Great Seal, 51; of states, faith and 

credit to, 206, 257. 
Reddaway, W. F., cited, 337, 445. 



■Reliefs, to be just, 2, 3; ancient, re- 
stored and specified, 11; of an escheat, 
18. 

Religion, state, 83. 96 ; freedom, 83, 96, 
169, 233, 259, 261 ; restrictions, 83, 84, 
86; morality, government, and, 298. 

Rejwrt on the JJiyniiy of a Peer, 84. 

Representation, right of, 79, 168, 184, 
185, 233. — See also Taxation. 

Representative, Parliament, 80. 

Republican government, guaranteed, 
236, 258 ; military establishments hos- 
tile to, 292; separation of powers, 297; 
foreign influence on, 302. — See also 
Government, United States. 

Requisition, of criminals, 206, 257 ; on 
states, 209, 212. 

Revenue, control of, under Commot- 
wealth, 93, 94; raised by prerogativ 
125; control of bills in Congress, 248. 
— See also Benevolences, Taxation. 

Rhodes, J. F., cited, 356, 446. 

Richardson, J. D., Compilation of Mes- 
sages, 321, 388, 446. 

Roger of Wendover, on Henry I., 6 ; 
Flowers of History, 6, 26, 447; on 
Magna Charta, 25. 

Roman Catholics, not to bear arms, 125; 
excluded from the crown, 130. — See 
also Church, Religion. 

Ropes, J. C, 446. 



SAINT-GERMAN, Chkistopher, on 
treatment of jurors, 54; Doctor and 
Student, 54, 446. 

Sanborn, J. T. A., 446. 

Schouler, James, cited, 178, 332, 354, 
446. 

Schurz, Carl, cited, 406, 446. 

Scots, king of, an English vassal, 22. 

Scutages, to be laid bv General Council, 
13. 

Sectionalism, dangers to the Union, 293. 

Senate, elections, 246, 247; equal state 
representation, 246 ; term, 246 ; organ- 
ization, 246, 247; qualifications, 246, 
374; presiding officer, 247; powers, 
247, 248, 254, 255, 264. — See also 
Congress. 

Separation of powers, 81, 167, 171, 172, 
207, 248, 297. 

Services, lawful, 14 ; militarj% abroad, 
45 ; public, regulation, 167. 

Sewall, J. M., on Washington's Farewell 
Address, 306. 

Slaver_v, refei-ence struck from Declara- 
tion of Independence, 192; in terri- 
tories, 236, 345; representation, 245; 
fugitive slaves, 258, 360-361; under 
the Constitution, 350; compensated 



INDEX 



457 



emancipation, 359, 361 ; slaves in rebel 
states emancipated, 359-364 ; abol- 
ished, 373. — See also Negroes, Slave 
trade. 

Slave trade, regulation, 251. 

Smith, E. P., cited, 279. 

Socage, tenure, 17. 

Sovereignty, state and national, 205, 
215, 259, 315, 317. 

Spain, war with United States, 388- 
391; peace, 392, 398. 

Sparks, Jared, cited, 309. 

Speaker, House to choose, 246. 

Spence, George, cited, 56, 446. 

Stamp Act, subverts rights of colonies, 
156; burdensome, 157; Franklin on, 
158. — See also Colonies. 

Stamp-Act Congress, Declaration 

- OF Rights and Grievances of 
THE Colonists in America, 155- 
157. 

Standing armv, of Commonwealth, 93 ; 
illegal, 125;" dangers, 169, 292; and 
civil power, 84, 169, 185; kept in col- 
onies, 185j forbidden, 208, 252. 

States, advised to form governments, 
171-173; residual powers in, 205,263; 
equal vote in Confederation, 207; in 
Senate, 246, 259; limitation of powers, 
207-208,252, 314-315,374-375 ; militia, 
208, 250; requisitions on, 209, 212; 
disputes between, settlement under 
Confederation, 210 ; new, 235-236, 258 ; 
national protection of, 258 ; suits 
against, 263 ; no control over federal 
powers, 315; sovereigntv, 205, 259, 
315, 317; citizenship, 343', 373. 

Statute, 8 Henry VI., Cap. 12, 
text, 49-51 ; contemporary exposition, 
51-54; critical comment, 54-65. 

Statutes at Large, 49, 446. 

Statutes of the Realm, 2, 9, 43, 67, 115, 
122, 138, 446. 

Statutum de Tallagio non concedendo, 
claimed, 67. 

Stevens, C. E., cited, 65, 136, 225, 281, 
446. 

Storv, Joseph, cited, 197, 220, 274, 318, 
446. 

Stubbs, William, Select Charters, 1, 
67 ; cited, 7, 29, 38, 46, 446. 

Suffrage, qualifications, 89-90, 167; in 
the United States, 375. — See also 
Elections. 

Summons to Parliament, text, 34-35; 
contemporary exposition, 35-37; criti- 
cal comment, 37-41. 

Sumner, W. G., cited, 319, 404, 446. 

Supreme Court, jurisdiction, 256 ; 
McCuLLOCH vs. Maryland, 312-316 ; 
to interpret Constitution, 313-316, 



343-344; Dred Scott Decision, 
340-349. 
Sureties, when liable, 12. 



TALLAGE, and representation, 67. 
Taney, R, B., delivers Dred Scott 
decision, 340; criticised, 350-352. 

Tarbell, Ida M., cited, 371, 446. 

Taswell-Langmead, J. P., cited, 31, 38, 
46, 60, 103, 119, 134, 446. 

Taxation, and representation, 44, 67, 86, 
156, 159, 160, 162, 168, 185, 245; di- 
rect, apportioned, 245,251; control of, 
249; necessary, 299. — See also Aids. 

Tavlor, Hannis, cited, 47, 63, 75, 103, 
121, 135, 446. 

Territor}', control of, 258; slavery in, 
345, 349 ; why acquired, 348 ; as prop- 
erty, 349. — See also Northwest Terri- 
tory. 

Thirteenth Amendment, text, 373; 
contemporary exposition, 375-380 ; 
critical comment, 380-387. 

Thomas, B. F., call for emancipation, 
365. 

Thorpe, F. N., cited, 179, 283, 446. 

Thwaites, R. G., cited, 153, 446. 

Tonnage duties, control, 252. 

Transportation of prisoners, forbidden, 
117; a grievance of colonies, 185. 

Treason, no pardon for, 86; high, to fail 
to summon Parliament, 90 ; rights 
of those accused of felony or, 116; 
against the United Spates, 257. 

Treaties, control, 207, 209, 252, 255; su- 
preme law, 259. — See also Foreign 
relations. 

Trial, by peers, 15, 18, 68, 168, 234; 
rights of accused, 262. — See also Jurv. 

Tucker, G. F., cited, 333, 447. 

Tucker, Dr. Josiah, on taxing colonies, 
161; Letter from a Merchant, 161, 447. 



UNITED STATES, style, 183, 186, 
205, 245; declared independent, 
186-187; government by delegated 
powers, 205, 263, 313; sovereigntv, 
215,259, 315, 317; admission of^new 
states, 258; guaranty to states, 258; 
value of the Union, 290-292; preser- 
vation, 293-304; foreign policv, 300- 
305, 322-328, 401; preservation of, 
object of Civil War, 358; citizen- 
ship, 373; disqualification for office, 
374; suffrage, 375; war with Spain, 
388-391, .392, 398; attitude and duty 
to Cuba, 389-394; and the colonies, 
394-401; problems, 399. — See also 
Confederation, Congress, Constitution. 



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458 



INDEX 



■yETO, power of, 92, 232, 249; of 
V colonial laws, 184. 

Vice-President, president of Senate, 247 ; 
term, 253; election, 253, 263; quali- 
fications, 264; succession to presi- 
dency, 254; impeachable, 256. 

Villein, fines of, 15. 

Virginia Convention, Declaration 
OF Rights, 166-169. 



WAINAGE, of villeins, 5. 
Walsh, Robert, cited, 150, 447. 
War, control of, 86, 92, 208, 209, 213, 
250, 252; powers in Emancipation 
Proclamation, 363. 
Wardship, regulated, 2, 3, 11, 17. 
Warrens. — See Forest. 
Washington, George, on Virginia 
Biil of Rights, 169; Works, 109, 219, 

270, 271, 286, 447 ; on the Confedera- 
tion, 218; on the Constitution, 269- 

271, 294; Farewkll Address to 
THE People OF THE Uamtkd States, 
286-306; declines a third term, 287; 
on his own administration, 288, 304- 
306; on value of the Union, 290; on 
its preservation, 291-305; on its for- 
eign policy, 300-304. 

WASHIis■GTo^•'s Farewell Address 
TO THE People of the United 
States, text, 286-306; contemporary 
exposition, 30S-309; critical comment, 
309-311. 



Wears, regulated, 17. " ■ 

Webster, "Daniel, cited, 192, 238, 273 ; 
on the Monroe Doctrine, 327 ; Works, 
328, 447. 

Webster, Pelatiah, on the Confedera- 
tion, 216 ; Remarks on a Pamphlet, 
217, 447. 

Weights and measures, uniform, 17; 
control, 211, 250. 

Welsh, restorations to the, 21. 

Wendover. — See Roger. 

Wheaton's Reports, 312. 

Widow, rights of, 3, 12, 13, 228. 

William ot'Mahnesbur}', extols Henry I., 
5 ; Chronieles of the Kings of Eng- 
land, 5, 444, 

William and Mary, declared king and 
queen, 126; accept, 127. 

Willoughby, W. W., cited, 319, 447. 

W^ilson, Henr3% on Dred Scott decision, 
353 ; Rise and Fall of the Slave Power, 
353, 447. 

Winsor, Justin, 165, 202, 447. 

Witnesses, necessary, 18, 168, 257, 
262. — See also Jury. 

Woman, limited right of accusation, 
21. 

Woolsey, T. S., cited, 336, 447. 



YEAS AND NAYS, under the Com- 
monwealth, 83; in Congress, 248. 



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LEAr/'i 



